Criminal Law, Philosophy and Public Health Practice 9781107468382, 9781107022782

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Criminal Law, Philosophy and Public Health Practice

The goal of improving public health involves the use of different tools, with the law being one way to influence the activities of institutions and individuals. Of the regulatory mechanisms afforded by law to achieve this end, criminal law remains a perennial mechanism to delimit the scope of individual and group conduct. However, criminal law may promote or hinder public health goals, and its use raises a number of complex questions that merit exploration. This examination of the interface between criminal law and public health brings together international experts from a variety of disciplines, including law, criminology, public health, philosophy and health policy, in order to examine the theoretical and practical implications of using criminal law to improve public health. A. M. Viens is Lecturer in Law at the University of Southampton. He is also a Research Fellow at the Institute for Medical Ethics and History of Medicine, Ruhr-University Bochum. John Coggon is Reader in Law at the University of Southampton. Anthony S. Kessel is Director of Public Health Strategy for Public Health England. He is also an Honorary Professor at the London School of Hygiene and Tropical Medicine.

Cambridge Bioethics and ­Law This series of books was founded by Cambridge University Press with Alexander McCall Smith as its first editor in 2003. It focuses on the law’s complex and troubled relationship with medicine across both the developed and the developing world. Since the early 1990s, we have seen in many countries increasing resort to the courts by dissatisfied patients and a growing use of the courts to attempt to resolve intractable ethical dilemmas. At the same time, legislatures across the world have struggled to address the questions posed by both the successes and the failures of modern medicine, while international organisations such as the WHO and UNESCO now regularly address issues of medical law. It follows that we would expect ethical and policy questions to be integral to the analysis of the legal issues discussed in this series. The series responds to the high profile of medical law in universities, in legal and medical practice, as well as in public and political affairs. We seek to reflect the evidence that many major health-related policy debates in the UK, Europe and the international community involve a strong medical law dimension. With that in mind, we seek to address how legal analysis might have a trans-jurisdictional and international relevance. Organ retention, embryonic stem cell research, physician assisted suicide and the allocation of resources to fund health care are but a few examples among many. The emphasis of this series is thus on matters of public concern and/or practical significance. We look for books that could make a difference to the development of medical law and enhance the role of medico-legal debate in policy circles. That is not to say that we lack interest in the important theoretical dimensions of the subject, but we aim to ensure that theoretical debate is grounded in the realities of how the law does and should interact with medicine and health care.

Series Editors Professor Margaret Brazier, University of Manchester Professor Graeme Laurie, University of Edinburgh Professor Richard Ashcroft, Queen Mary, University of London Professor Eric M. Meslin, Indiana University

Books in the series Marcus Radetzki, Marian Radetzki and Niklas  Juth, Genes and Insurance: Ethical, Legal and Economic Issues Ruth Macklin, Double Standards in Medical Research in Developing Countries Donna Dickenson, Property in the Body: Feminist ­Perspectives Matti Häyry, Ruth Chadwick, Vilhjálmur Árnason and Gardar Árnason, The Ethics and Governance of Human Genetic Databases: European Perspectives Ken Mason, The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction

Daniel Sperling, Posthumous Interests: Legal and Ethical ­Perspectives Keith Syrett, Law, Legitimacy and the Rationing of Health Care Alastair Maclean, Autonomy, Informed Consent and the Law: A Relational Change Heather Widdows, Caroline Mullen, The Governance of Genetic Information: Who Decides? David Price, Human Tissue in Transplantation and Research Matti Häyry, Rationality and the Genetic Challenge: Making People Better? Mary Donnelly, Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism Anne-Maree Farrell, David Price and Muireann Quigley, Organ Shortage: Ethics, Law and Pragmatism Sara Fovargue, Xenotransplantation and Risk: Regulating a Developing Biotechnology John Coggon, What Makes Health Public?: A Critical Evaluation of Moral, Legal, and Political Claims in Public Health Mark Taylor, Genetic Data and the Law: A Critical Perspective on Privacy ­P rotection Anne-Maree Farrell, The Politics of Blood: Ethics, Innovation and the Regulation of Risk Stephen Smith, End-of-Life Decisions in Medical Care: Principles and Policies for Regulating the Dying Process Michael Parker, Ethical Problems and Genetics Practice William W. Lowrance, Privacy, Confidentiality, and Health Research Kerry Lynn Macintosh, Human Cloning: Four Fallacies and Their Legal Consequence Heather Widdows, The Connected Self: The Ethics and Governance of the Genetic Individual Amel Alghrani, Rebecca Bennett and Suzanne Ost, Bioethics, Medicine and the Criminal Law Volume I: The Criminal Law and Bioethical Conflict: Walking the Tightrope Danielle Griffiths and Andrew Sanders, Bioethics, Medicine and the Criminal Law Volume II: Medicine, Crime and Society Margaret Brazier and Suzanne Ost, Bioethics, Medicine and the Criminal Law Volume III: Medicine and Bioethics in the Theatre of the Criminal Process Sigrid Sterckx, Kasper Raus and Freddy Mortier, Continuous Sedation at the End of Life: Ethical, Clinical and Legal Perspectives A. M. Viens, John Coggon and Anthony S. Kessel, Criminal Law, Philosophy and Public Health Practice

Criminal Law, Philosophy and Public Health Practice Edited by A. M. Viens, John Coggon and Anthony S. Kessel

University Printing House, Cambridge CB2 8BS, United Kingdom Published in the United States of America by Cambridge University Press, New York Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107022782 © Cambridge University Press 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed and bound in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Criminal law, philosophy and public health practice / [edited by] A. M. Viens, John Coggon, Anthony S. Kessel. pages  cm. – (Cambridge bioethics and law) Includes bibliographical references and index. ISBN 978-1-107-02278-2 (hardback) 1.  Public health laws–Criminal provisions.  2.  Public health administration  I.  Viens, A. M. (Adrian M.) editor of compilation.  II.  Coggon, John, 1980– editor of compilation.  III.  Kessel, A. (Anthony) editor of compilation. K3570.C73  2013 345´.0242–dc23    2013020830 ISBN 978-1-107-02278-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

­Contents

List of contributors Acknowledgements

page ix xi

1 Introduction

1

A . M . V iens , J ohn C oggon and A nthony S . K essel

2 Criminal law, regulatory frameworks and public health

19

R oger B rownsword

3 Drugs, crime and public health: a lesson from criminology

42

D ouglas N .  H usak

4 Criminal law, drugs and harm reduction 

62

T om Walker

5 Morality and strategy in politicising tobacco use: criminal law, public health and philosophy

79

J ohn C oggon

6 Pursued by the ‘fat’ police? Prosecuting the parents of obese children

102

T racey E lliott

7 Disease transmission, liability and criminal law

124

J ames C halmers

8 Compulsion, surveillance, testing and treatment: a truly ‘criminal’ matter?

142

J ean V. M c hale

9 Epidemiological criminology and violence prevention: addressing the co-occurrence of criminal violence and poor health outcomes

171

R oberto H . P otter and T imothy A .  akers

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viii

­Content

10 Forensic epidemiology: strange bedfellows or the perfect match? Can public health and criminal law work together without losing their souls?

192

Z ita L azzarini

11 From the criminal to the consensual: the shifting mechanisms of environmental regulation

214

R obert G . L ee A nd M ark S tallworthy

12 Criminal law and global health governance

237

David P. F idler

Index

261

­Contributors

is Professor of Public Health and Assistant Vice President for Research Innovation and Advocacy, Division of Research and Economic Development, Morgan State University.

T I MOT H Y A . A K ER S

R O G E R B R OW N S WO R D is Professor of Law, Dickson Poon School of Law, King’s College London, and Honorary Professor in Law at the University of Sheffield. JA M ES CH A L M ER S

is Regius Professor of Law, School of Law, University

of Glasgow. is Reader in Law, Southampton Law School, University of Southampton.

JOH N COG G ON

T R AC E Y E L L I O T T is Lecturer in Health Care Law, School of Law, University of Leicester. DAV I D P. F I D L E R is James Louis Calamaras Professor of Law, Maurer School of Law, Indiana University Bloomington. D O U G L A S N . H U S A K is Professor of Philosophy and Law, Department of Philosophy, Rutgers University. K E S S E L is Director of Public Health Strategy and Director of R&D and Responsible Officer, Public Health England, and Honorary Professor, London School of Hygiene & Tropical Medicine.

A N T HON Y S.

Z I TA L A Z Z A R I N I is Associate Professor and Director, Division of Public Health Law and Bioethics, University of Connecticut School of Medicine, University of Connecticut Health Center.

is Chair in Environmental Law, Exeter Law School, University of Exeter.

ROBERT G. L E E

ix

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List of ­contributors

is Professor of Health Care Law and Director of the Centre for Health Law, Science and Policy, Birmingham Law School, University of Birmingham.

J E A N V. M c H A L E

is Director of Research Partnerships and Chair, Department of Criminal Justice, College of Health and Public Affairs, University of Central Florida.

ROBERTO H. POT T ER

S TA L LWO R T H Y is Professor of Environmental Law and Co-Director of the Centre for Environmental and Energy Law and Policy, School of Law, Swansea University.

MARK

is Lecturer in Law, Southampton Law School, University of Southampton, and Research Fellow, Institute for Medical Ethics & History of Medicine, Ruhr-University Bochum.

A. M. V IENS

T O M WA L K E R is Senior Lecturer in Ethics, School of Politics, International Studies and Philosophy, Queen’s University Belfast.

­Acknowledgements

The editors would like to thank all of the contributors to the volume for their dedication to this project. A debt of gratitude is also owed to Richard Ashcroft, Dermot Feenan, Christine Holmes and Richard Woodham. We would especially like to thank Finola O’Sullivan for her immense patience and support throughout this process. Royalties from this volume are being donated to two charities  – Nacro (www.nacro. org.uk) and Merlin (www.merlin.org.uk).

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1 ­Introduction A. M. Viens, John Coggon and Anthony S. Kessel

Public health has long been recognised, even celebrated, as a multidisciplinary field. Both in its theory and its application public health draws from many methodologies, epistemologies, and practical approaches. A fascinating aspect of work in public health, therefore, is the insights it offers into cross-disciplinary and cross-sector discourse. But simultaneously, public health also presents challenges; challenges in communication and understanding, and challenges concerning the legitimacy of governmental authority. Law both enables the coordinated actions required to protect and promote health, and places limits on government agencies’ freedoms to interfere with the rightfully private aspects of citizens’ lives.1 The idea of State involvement into medical matters, for instance through systems of compulsory powers as well as inspection and enforcement mechanisms made available through criminal law, was promoted by physicians such as Johann Peter Frank in the late eighteenth century.2 This so-called ‘policing model of public health’, which remained influential in places such as Britain into the nineteenth century, began to give way to more social models of public health with the more formal establishment of public health as a profession in the latter half of that century. The extent to which criminal law was thought appropriate to be used to advance public health goals has changed over time for a number of reasons. One reason stems from how our beliefs about the nature and scope of the criminal law have changed; especially as views such as legal moralism have become discredited and individual rights have become more prominent. Another reason stems from how different perspectives have been used to approach issues that have traditionally been 1 Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, 2nd edn (Berkeley, University of California Press, 2008), p. 4. 2 Virginia Berridge, ‘The development of the health professions’, in Virginia Berridge and Martin Gorsky (eds.), Public Health in History (Open University Press, 2011), pp. 58–73, at 64.

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A. M. Viens, John Coggon and Anthony S. ­Kessel

conceived as criminal law problems. Many of the issues that were once the exclusive purview of criminal law are now increasingly treated as public health problems. In many ways, the cover of this volume  – William Hogarth’s Gin Lane  – provides an illustrative example of the overlapping considerations between public health and criminal law highlighted in support of legislative efforts that would become the Gin Act.3 The cover image depicts many of the health and crime problems that were thought to be associated with the consumption of gin. Scenes of poverty, poor housing and environmental conditions, physical and mental illness, starvation and destitution, suicide and infanticide, violence and addiction pervade the piece; an illustration of the moral and medical ills that the law could seek to address. Using criminal law as one way of re-enforcing the shared morality of the community has given way increasingly to harm reduction and social justice approaches that seek to mitigate, identify and rectify the consequences of these problems as well as their causes. Important similarities and connections between criminal law and public health persist and arise, making an examination of their interrelation and effects on each other worthy of greater study. Public health and criminal justice systems share a primary objective, broadly speaking, of protecting important public goods. Public health, public order and public safety are vital goods that the State has an obligation to protect and promote – along with helping citizens fulfil their obligations in contributing to the production and sustainability of these goods. For this reason, there is a series of considerations that underpins the many ways in which both criminal law and public health can overlap. The public nature of such goods requires forms of collective and coordinated responses to problems that affect the community and its constituents. These responses often seek to prevent or mitigate public health, public order and public safety problems through providing guidance around personal behaviour. In seeking to understand what constitutes a problem for the community and what kind of responses ought to be undertaken to remedy problems, both public health and criminal law rely on concepts such as harm, causation and culpability to evaluate and justify their activities. Nevertheless, both criminal law and public health also diverge in important ways, with their interface potentially leading to negative or counterproductive results. The shared and divergent characteristics between criminal law and public health raise a number of theoretical and practical issues. 3 Sale of Spirits Act 1750, 24 Geo. II c. ­40.

­Introductio

3

In the scholarly and public policy literature, there is more work s­ tarting to be done on the relationship between criminal law and medicine.4 Much less work has been done, however, on criminal law and public health5 – and, of this work, a predominant focus has been confined to particular topics, such as HIV transmission6 and drugs.7 The sophistication brought to debates on public health policy has also been enriched in recent years through a surge in philosophical interest in the subject. There is still much ground to cover, however, in the developing discourses in public health, philosophy and law. With this book, we aim to advance that agenda through a series of original research papers that are dedicated to examining the interface between criminal law, philosophy and public health practice. This volume marks the first contribution to the literature that seeks to provide a varied, yet sustained, examination of the conceptual, normative and practical implications of protecting or promoting public health through criminal law. With contributions representing a variety of disciplines and areas of practical experience, including law, criminology, public health, philosophy, policy, and bioethics, the volume will be, we hope, a crucial reference point for scholars and practitioners interested in understanding how criminal law might improve health policy, how it 4 See, e.g., Charles A. Erin and Suzanne Ost (eds.), The Criminal Justice System and Health Care (Oxford University Press, 2007); Amel Alghrani, Rebecca Bennett and Suzanne Ost (eds.), Bioethics, Medicine and the Criminal Law Volume I. The Criminal Law and Bioethical Conflict: Walking the Tightrope (Cambridge University Press, 2013); Danielle Griffiths and Andrew Sanders (eds.), Bioethics, Medicine and the Criminal Law Volume II. Medicine, Crime and Society (Cambridge University Press, 2013); Margaret Brazier and Suzanne Ost, Bioethics, Medicine and the Criminal Law: Medicine and Bioethics in the Theatre of the Criminal Process Volume III (Cambridge University Press, 2013). 5 A notable exception includes Zita Lazzarini, Richard A. Goodman and Kim S. Dammers, ‘Criminal law and public health practice’, in Richard A. Goodman, et al. (eds.), Law in Public Health Practice, 2nd edn (Oxford University Press, 2007), pp. 136–67. 6 See, e.g., Lawrence O. Gostin, ‘The Politics of AIDS: Compulsory State Powers, Public Health, and Civil Liberties’, (1989) 49 Ohio State Law Journal 1017; Simon H. Bronitt, ‘Criminal Liability for the Transmission of HIV/AIDS’, (1992) 16 Criminal Law Journal 85; Richard Elliot, Criminal Law, Public Health and HIV Transmission: A Policy Options Paper (Geneva, UNAIDS, 2002); Matthew Weait, Intimacy and Responsibility: The Criminalisation of HIV Transmission (Abingdon, Routledge-Cavendish, 2007); James Chalmers, ‘The criminalisation of HIV transmission’, in his Legal Responses to HIV and AIDS (Oxford, Hart Publishing, 2008), pp. 123–48. 7 See, e.g., Ernest Drucker, ‘Drug Prohibition and Public Health: 25 Years of Evidence’, (1999) 114 Public Health Reports 14; Carlos Dobkin and Nancy Nicosia, ‘The War on Drugs: Methamphetamine, Public Health, and Crime’, (2009) 99 American Economic Review 324; Thomas F. Babor, et al., Drug Policy and the Public Good (Oxford University Press, 2010); Alex Stevens, Drugs, Crime and Public Health: The Political Economy of Drug Policy (Abingdon, Routledge-Cavendish, 2011).

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might affect health outcomes and what limits there are to using criminal regulation in public health. In this opening chapter, we introduce the subject matter of the book and present brief overviews of the chapters.

The aims of criminal law and public health

Public health policies are advanced using different kinds of measures. Familiar measures include statements, practices and interventions, which the law can help to make more effective. Law and regulations, however, should also be seen as public health measures in themselves that seek to reduce the burden of disease, disability or injury within the population. Sometimes the criminal law is used as a direct measure. For example, in many jurisdictions it can be a criminal offence to transmit or expose another person to HIV through unprotected sexual intercourse. On other occasions, criminal law is used as a supplementary measure to complement or shore up non-legal public health measures. For example, we may find restrictions on sale of alcohol to minors as part of a wider health promotion strategy to promote responsible consumption of alcoholic beverages. It should be noted here that criminal law is understood quite broadly to include legal and legislative materials (for example statutes, regulations, civil codes, case law), institutions (for example courts and tribunals) and officials (for example police, judges). As such, this volume is primarily concerned with how different organisations, processes or personnel associated with the criminal law and the criminal justice system might be used as a means of promoting or protecting public health. To learn how criminal law might be well used in public health policy, it is important to consider the aims and purposes both of criminalisation and of making something a subject of public health policy. It is important, as well, to see how criminal law and health policy, which we have presented as formally separate, cohere and correspond to one another within a wider, complete theory of good law and government. In reality, it is true that there is no universally accepted way of characterising the aims of criminal law. We can, however, reflect on issues that are considered particular to this branch of governance, before presenting some dominant views on the aims of public health. In his leading work, Principles of Criminal Law, Andrew Ashworth opens with two core ideas: ‘Criminal liability is the strongest formal condemnation that society can inflict, and it may also result in a sentence which amounts to a severe deprivation of the ordinary liberties of the offender.’8 Ashworth goes on to note that the State deprives us 8 Andrew Ashworth, Principles of Criminal Law, 6th edn (Oxford University Press, 2009), p. 1.

­Introductio

5

of our liberties in other ways too: for example, through taxation. But on Ashworth’s analysis, that sort of deprivation is based on ‘mutual obligations necessary for worthwhile community living’, as opposed to criminal measures, which carry the ‘strong implication of “ought not to do”’.9 With the surging popularity of ‘nudges’ in governments’ health agendas,10 many scholars will recognise that non-criminal measures can still carry an implication of ‘ought not to do’ (or at the very least ‘better not to do’). Obvious examples here include minimum pricing on alcoholic drinks, health warnings on cigarette packaging or bans on trans-fats. Yet Ashworth is able to draw a distinction, perhaps, between these less profound ‘oughts’ and the sorts of ‘serious wrong’ that criminal law would address.11 However, he immediately acknowledges that sometimes criminal law is used because it is the most practical means of regulation: many criminal offences give rise to virtually no stigma or social condemnation.12 Even if, as Ashworth makes clear, we consider criminality to involve offences not just against persons, but also against the State, there is little that we can say about the aims and substance of criminal law that will render its entirety formally distinct from other forms of regulation. We might note, nevertheless, the strong association, at least as a general rule, with moral evaluation of specific acts that are in some ways public offences (not merely private ones). We might note, too, that more practical use is sometimes given to criminalisation as an expedient regulatory method. Moving to public health, the focus on both morality and practicality in regulation provide useful entries to discussion. Two of the most influential definitions of public health have echoes of that given by Charles-Edward A. Winslow in 1920,13 and hold that public health is: [W]hat we, as a society, do collectively to assure the conditions in which people can be healthy.14

and [T]he science and art of preventing disease, prolonging life and promoting health through organised efforts of society.15 9 Ibid. 10 Richard Thaler and Cass Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (London, Penguin Books, 2009). 11 Ashworth, Principles of Criminal Law, p. 1, emphasis added. 12 Ibid. p. 2. 13 See C-E.A. Winslow, ‘The Untilled Fields of Public Health’, (1920) 51 Science 22. 14 Institute of Medicine, The Future of Public Health (Washington, DC, National Academy Press, 1988). 15 Donald Acheson, Public Health in England, Cmnd 289 (London, HMSO, ­1988).

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In both of these definitions there is widely perceived to be a ­practical imperative, which enjoins governments to coordinate actors within society to act so that people can be healthy. Of course, for a practical imperative to compel us, it must have some persuasive force, and that need not be moral. Such force may derive, for example, from appeal to economic or prudential interests. But in relation to public health, we find a wide array of arguments about the inherent ethics of public health practice and policy, and arguments about how particular ethical and political theories will improve public health agendas, and endow them with greater legitimacy.16 In other words, public health is widely perceived to promote an ethical agenda. Equally, criminal measures are often seen to advance a moral agenda. In each case, we therefore find claims, sometimes implicit, about particular obligations held by the State to act in pursuit of a moral end, or at least to ensure that some other agency assumes responsibility to do so. In terms of regulation, public health law and policy clearly implicate areas well outside of criminal law. In efforts to improve health through the use of law and regulation, it is perhaps best to emphasise the range of necessary means to assure and promote people’s health. Such means include environmental regulations, provision of education, provision of health care systems, institution of measures to prevent harms in dangerous public places such as the road network, regulations safeguarding occupational health and measures for food regulation. The scope of matters that fall under the concern of public health is very broad: potentially, public health law is a ‘field without boundaries’.17 From a moral perspective, public health and its rationales supporting the making of public health law are often seen as governed by a utilitarian ethic. Public health is concerned with the health of populations and sub-populations, and requires engagement with government in the development of health policy. The ‘population perspective’ of public health encapsulates a broad approach, aimed at improving social structures, conditions and capacities, with the goal of improving population safety and health. This can cohere and deviate from the criminal law in important ways.

16 Cf., e.g., Bruce Jennings, ‘Frameworks for Ethics in Public Health’, (2003) 9 Acta Bioethica 165. 17 See further John Coggon, What Makes Health Public? A Critical Evaluation of Moral, Legal, and Political Claims in Public Health (Cambridge University Press, 2012), ch. 5.

­Introductio



7

Criminal law and public health: similarities and differences

We might start by contrasting criminal law as a deontological system – punishing wrongs – and public health as engaging a utilitarian, or consequentialist, agenda  – maximising health. However, even our brief introduction has indicated that whilst these may be general truths, criminal regulation can often be employed simply as the most effective way to achieve an end regardless of particularly meaningful moral condemnation of an act itself. Likewise, some in public health may consider ‘the health of the people to be the highest law’, but they also recognise side-constraints on what constitutes legitimate governmental action. Health is one value amongst several (perhaps many). And even in arguments that advance health as a foundational value, it is clearly recognised that legitimate governance does not obtain in doing whatever it takes just so long as maximum health outcomes are achieved.18 Is it possible, then, that there are similarities as well as differences, and perhaps even synergies between criminal law and public health practice? The answer necessarily depends on various factors, such as how we conceive of legitimate criminalisation and legitimate public health governance. As is evidenced in this volume’s chapters, theorists differ on these points. We might begin by presenting here a similarity that is widely recognised, if not always obvious: neither criminal law nor public health exists in a vacuum. Each is contained within a wider system. No legal regime is exhausted by its criminal laws or criminal justice system. Likewise, governments have concerns beyond public health, even when that term is broadly conceived. In sum, whilst public health and criminal law may provide discrete areas of study, neither can be coherently dissociated from a broader political system. Ultimately it is the wider political system that will define legitimate criminalisation and acceptable public health practices.19 In a more general sense, questions about the legal authority or legitimacy of using the law and regulations to advance public health are relatively uncontroversial. In many jurisdictions, public health law

18 Lawrence O. Gostin and Lesley Stone, ‘Health of the people: the highest law?’, in Angus Dawson and Marcel Verweij (eds.), Ethics, Prevention, and Public Health (Oxford University Press, 2007), pp. 59–77. 19 Coggon, What Makes Health Public?, Part II.

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grants broad authority to officials at national, regional and local levels to protect public health. Both rule-making and rule-enforcing authority provides public health practitioners with powers to use their technical knowledge and expertise to undertake those measures necessary to reduce the burden of disease within the population. What can be controversial, however, is the scope of such powers. This is so not only with respect to how far public health practitioners should be allowed to, for instance, interfere with our freedom to make personal choices, but also just what choices are fair game for intervention in the first place. A second similarity is that morality has an important role to play in philosophical analysis of both crime and public health. Where this is presented at its bluntest, there is tension: criminal law condemns ‘wrongful’ acts and (by implication) promotes rights; public health aims to minimise (risks of) harms and promote benefits. But increasingly it is recognised that a more ethically defensible public health would derive its norms from a system of social justice, which at once aims for equity but also recommends constraints on ends that might be pursued.20 Equally, as suggested above, criminal law is not just about society expressing condemnation. In a wider sense, questions about the moral authority or legitimacy of using the law to advance public health will require an analysis that contextualises the various ways in which the harms (material and non-material) and wrongs we seek to address using different approaches or measures can be justified. In this way, we might say that criminal law and public health tend to lead to different emphases within legitimate political morality (one emphasising wrongs, the other emphasising harms). It is important to recognise that some apparent differences can be attributed to this, and that it leaves open the possibility of more compatibility than might at first appear between criminal measures and public health measures. It does not necessarily follow, of course, that criminal law should be used to advance public health ends, but this option is at least presumptively there. Thus, in addition to arguments being made for the permissible use of criminal law to advance public health, what is needed are arguments for why such a use would also be desirable in the circumstance. A final, more abstract similarity is that criminal law and public health are both designed institutionally to safeguard important social interests. This may imply a level of automatic harmony between the two, but we must remember too that within disciplines, fields and sectors particular wisdoms come to dominate. In this sense, the similarity is possession 20 See Anthony Kessel, Air, the Environment and Public Health (Cambridge University Press, 2006).

­Introductio

9

of the dominant philosophy. The difference is the substance of that philosophy. Ultimate assessment of these questions is made easier by considering practical questions; evaluating how criminal law might be employed to advance health interests and assessing the benefits and legitimacy of this. Some of these considerations can be illustrated by briefly touching on some of the benefits and barriers of using criminal law to advance public health goals. The law has played a critical role over centuries in helping to improve the health of the public. With regard to hygiene, for example, the English Sanitary Act 1388 prohibited the casting of animal filth and refuse into rivers or ditches, and sanitary laws in the second half of the nineteenth century were instrumental in many western countries in terms of reducing mortality from infectious diseases. In the area of atmospheric pollution, the law has been similarly key as a vehicle of health benefit. An Ordinance in 1273 prohibited the use of coal in London as being prejudicial to health, and a Royal Proclamation in 1306 forbade the use of coal by artificers (one offender was apparently executed). In Britain, Public Health Acts in the nineteenth and twentieth centuries legislated against the consumption and production of smoke. The famous Clean Air Acts of 1956 and 1968 controlled factory emissions and created smoke-control areas, playing a part in reducing population morbidity from air pollution. Policy makers have used the powers and processes of the law (and related regulations) to directly enhance population health, but such laws have also enabled public health professionals to deliver interventions that can extend deeply into the choices and activities that compose our public and private lives. The use of the law by health policy makers and those involved in public health practice has thus resulted in betterment in: measures related to the poor and under-housed; incarceration conditions for prisoners; child labour; workplace safety; pollution and environmental protection; terrorism and bioterrorism; firearms control; road traffic accidents; seat belt and motorcycle helmet use, domestic violence; and consumption of intoxicating substances, such as drugs and alcohol. Various interventions, either directly or indirectly, have made use of criminal law and criminal justice systems in order to effect structural changes or influence behaviour to improve individual and population health. Despite such successes, there have also been circumstances in which the use of criminal law has either been a hindrance to public health efforts or its use to promote public health has been ineffective or counterproductive. This has been particularly clear in jurisdictions where the criminalisation of the possession or distribution of syringes, or the

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availability of safe injection sites, have prevented practitioners from being able to mitigate the incidence or prevalence of blood-borne diseases, such as Hepatitis C and HIV.21 While some of these barriers are being reduced in places such as the United States and Canada, following the lead of many countries in Western Europe, there still remains some resistance and calls for the reinstatement or strengthening of restrictions.

Overview of the contents

The volume begins with Roger Brownsword’s chapter, which examines criminal law, regulatory frameworks and public health. He begins with the powerful observation that: ‘Unless there is a reason for thinking that it is never appropriate to make use of the criminal law for public health purposes (and I know of no such reason), it will be for regulators to assess whether, in each particular case, such a strategy passes muster as both legitimate and effective.’(p. 19) As is clear, Brownsword takes seriously the importance of assessing effectiveness. However, the burden of his chapter is an analysis of legitimacy. He introduces the discussion by contrasting two perspectives that would have distinct bearings on questions of legitimacy. A ‘public health perspective’ would seek to promote health, with general utility being the indicator of when use of criminal law is justified. A ‘cautious liberal criminal lawyer’, by contrast, would be more restrictive and defensive of individuals’ presumed freedom to choose. Brownsword’s argument is for a regulatory response that accounts for concerns of both perspectives. His chapter works through two main lines of reasoning. First, he demonstrates well the breadth of methods employed in ‘modern regulatory environments’. Apparently benign, non-criminal, non-coercive measures abound, and may be no less offensive to the concerns of the ‘liberal’ than criminalisation. Furthermore, people’s behaviour is subject to many non-legal regulatory controls that are in many ways invisible. As such, liberals should look at a much broader regulatory environment, and ask both what regulators are aiming to achieve and how they seek to do so. In the second part of his chapter, Brownsword aims to establish that people would rationally 21 See, e.g., Scott Burris, Kim M. Blankenship, Martin Donoghoe, Susan Sherman, Jon S. Vernick, Patricia Case, Zita Lazzarini and Stephen Koester, ‘Addressing the “Risk Environment” for Injection Drug Users: The Mysterious Case of the Missing Cop’, (2004) 82 Milbank Quarterly 125; Lawrence O. Gostin and Zita Lazzarini, ‘Prevention of HIV/AIDS Among Injecting Drug Users: The Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention’, (1997) 46 Emory Law Review 587.

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agree to a system that has an infrastructure that is protective of public health. Regulators, in this theory, exercise a stewardship jurisdiction that at once sustains protections of liberal commitments, whilst also affording a robust infrastructure that will safeguard health. Douglas Husak’s chapter examines the application of criminal law to drug policy. On grounds of both principle and policy, there is growing opposition to approaching illicit drugs as exclusively a criminal law problem that requires spending vast amounts of money on punitive drug policies. Husak is, of course, well known for his work on the limits of criminalisation and the decriminalisation of illicit drugs. In this chapter, Husak contends that applying the general principles of criminalisation should lead us to the view that persons should not be punished merely for using illicit drugs. Instead, the criminal justice system should leave drug users alone and our drugs policy should move to treating the use of illicit drugs as a public health problem. Nevertheless, as Husak maintains, ‘with so many questions about the meaning of a public health approach to a given issue, it is sensible to ask why illicit drugs are believed to present a public health problem in the first place. This inquiry is crucial if we hope to defend a public health approach to drug policy and assess its compatibility with criminalization’ (p. 48). Husak explores one possible answer: the use of illicit drugs poses a public health problem because it causes violence. Using some of the criminological findings on the drug–crime connection, he seeks to identify the normative significance of these findings – in particular the difficulty of specifying the mechanism that allegedly links drugs and violence. Focusing on the experience of New York City in particular, Husak argues we have good reason to be sceptical that drug use should be understood as a public health problem because of its causal contribution to violent crime. Tom Walker’s chapter focuses on drug policy, considering criminal law and harm reduction programmes. His starting point is the observation that harm reduction policies  – such as needle exchange programmes – ostensibly, at least, conflict with criminal laws that prohibit supply of such products to people who will use them to take proscribed drugs. Furthermore, the very taking of the drugs in the controlled environment may conflict with criminal laws regarding possession. As such, Walker is able to set up criminal laws and harm reduction programmes as having conflicting aims: the former would proscribe what is considered to be outright wrong, while the latter would try to optimise outcomes even if this means permitting what is currently conceived as criminal activity. One way to overcome this tension is to make harm reduction part of the criminal law agenda. An alternative,

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which Walker explores, is to seek to avoid taking a position on what the aims of laws concerning drugs should be. We might, for example, instead look to the ­effectiveness of a harm reduction programme based on the grounds of public health. Here Walker is developing conceptual analysis, and particularly examining the question of how useful it is to conceive of drug use itself as a public health problem, or considering harm reduction as a means of addressing the public health problem of, for example, HIV/AIDS. He argues that a complication with such an approach is that there are problems with drugs than their effects on health; drugs may be a public health problem, but they are not just this. As such, advocates for harm reduction programmes might try (Walker would argue unsuccessfully) to push for change on the basis of public health reasons alone. Or they might try to incorporate public health reasoning within a wider network of means of problematising drug use. On this latter approach, he outlines and investigates three questions that must be answered when deciding whether to change criminal law in order to give effect to a harm reduction policy: ‘(1) How good are the grounds for thinking that it is likely to be effective? (2) Are there other ways to achieve the public health aim? (3) Which objective is the most important?’ (p. 71) John Coggon’s chapter looks at the question of tobacco policy, and considers the role of criminal regulation in a wider process that seeks to de-normalise smoking. The argument explores ideas about the role of philosophical argument in relation to tobacco, beginning with the observation that as a practical problem it is not possible to study this area in the abstract. Equally, Coggon argues, it is not useful to begin either from a ‘criminal law perspective’ or a ‘public health perspective’. It is, nevertheless, important to be able to account for the sorts of theoretical and practical concerns that are germane to these fields of study and practice. Accounting for the different emphases that each perspective brings, and for the need to embed philosophical argument in a context of ‘real politics’, Coggon goes on to consider what role criminal law might play in the regulation of tobacco. Accepting that criminalisation could not have a singular, or even predominant, role in such regulation, he considers it in a more diffuse process that aims to reduce smoking. Policy developments can be seen to make smoking a more public – and thus less private – matter, and, as such, something that is increasingly open to regulation. This raises both practical and ethical concerns, from which we can learn much about regulatory possibility and political strategy. Tracey Elliott’s chapter focuses on obesity, particularly obese and significantly overweight children. She begins by analysing the nature

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of obesity – whether it should be understood as a disease or a risk factor for other illnesses, and how the health risks of such a condition affect children as well as the population as a whole. The interface of criminal law and public health in the context of paediatric obesity has primarily emerged as a child protection issue in England and the US. While there have been a number of well-publicised cases of obese children being removed from their homes and even taken into care, people have been hesitant to act on the suggestion that criminal law could also be used to prosecute the parents of obese children for neglect. Elliott proceeds to analyse whether the elements of a criminal offence of negligence could be satisfied in such cases and whether State intervention into such matters would be permissible or desirable. She maintains that, in cases where parents are directly and solely responsible for their child being obese as a direct result of their parents’ preferences for food and exercise, ‘the harm principle may be used to justify State interventions, based upon the vulnerability of children and the need to reduce the health risks imposed by parents on their children’ (p.  121). Nevertheless, criminalisation should only be used as a last resort. In practice, a minimalist approach, in which health promotion strategies and seeking parental cooperation with medical practitioners to limit the risks that obesity poses to their children, provides a better approach than being pursued by the ‘“fat” police’. James Chalmers’ chapter examines criminal liability for disease transmission  – with a particular focus on sexually transmitted infections such as HIV. The chapter begins with a brief history of how the law has tended to handle disease transmission and how criminal law had played a relatively small part in its regulation until recently. As the application of general and specific criminal law rules in cases related to disease transmission have become more prevalent (for example, reckless transmission of HIV to sexual partners), there is a growing need to examine how justifiable such practices are. Exploring what should operate as a constraint on which forms of conduct should be criminalised, Chalmers examines how transmission-related offences can be reconciled with the harm principle. In particular, Chalmers analyses how a particular conception of the harm principle and the level of specificity at which the harm of disease transmission is described are central to understanding the plausibility of criminal liability for transmission. Examining how this issue has been developed in the context of the UK legal system, Chalmers examines some of the advantages and disadvantages that resulted from how the general absence of specific public health regulation left room for criminal law to intervene into matters of disease transmission.

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Jean V. McHale’s chapter examines the use of the criminal law as a regulatory tool in the area of disease surveillance, testing and treatment. It explores how both utilitarian and deontological approaches would support restricting individual autonomy and control of personal information. It suggests that in determining whether criminal law should be utilised this should be viewed through the prism of foundational criminal law approaches rather than specifically as being a ‘health law’ issue. Criminalisation represents fundamental societal condemnation of an activity and it is the case that such condemnation should only operate in exceptional circumstances. The chapter proceeds to examine Andrew Ashworth’s proposed criteria as to whether a particular form of conduct should constitute a criminal offence and suggests that the use of such multifaceted criteria provides a better approach for analysing the use of the criminal law in this area. It then explores surveillance, testing and treatment in turn. It suggests that, generally, while compulsion should not be used, in certain specific situations it may be justified. However, McHale urges caution and argues that whether criminal compulsion should be utilised in a specific case is not only highly context dependent but also may be jurisdictionally dependent. Moreover, such uses must always be proportionate and human rights compliant. The other contributions to this volume focus on the ways in which criminal law and the criminal justice system can be used as a means of advancing public health, but it is also important to acknowledge that their interaction is not completely one directional. Just as public health practitioners might seek to use criminal law tools, law enforcement officials might also seek to make use of the knowledge and techniques developed by public health researchers and practitioners. Zita Lazzarini’s chapter focuses on the emerging field of forensic epidemiology and explores the advantages and disadvantages of the collaboration between law enforcement and public health, including some shared basic goals, professionals employed, language used in investigations and methods of evaluating outcomes. Lazzarini uses cases where public health professionals have investigated health issues with suspected or established criminal consequences, or where public health expertise and evidence has been used in criminal proceedings to explore the different cultures and challenges that arise in forensic epidemiology. Of particular import is understanding the potential and real risks that exist from the close identification of public health with law enforcement. Lazzarini maintains that public health practitioners should ensure that cooperation with law enforcement does not erode the mission of public health and the relationship of trust between practitioners and the community they serve.

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Roberto H. Potter and Timothy A. Akers’ chapter uses the issue of violent behaviour and its prevention to elucidate the framework of epidemiological criminology, which seeks to link knowledge about the aetiology and epidemiology of violent behaviour gained from the field of criminology with public health injury prevention initiatives. Epidemiological criminology is predicated on the hypothesis that behaviours that lead to criminal and poor health outcomes share an underlying aetiological dimension that often results from poor, individual decision-making and risk taking. Through examining and better understanding the structural and organisational factors that predispose individuals to engage in these forms of behaviour, it is possible to develop or enhance public health measures related not only to violence, but also to substance use and risky sexual behaviours. Potter and Akers also maintain that epidemiological criminology might be useful in developing interventions addressing the disproportionate levels of infectious and chronic diseases observed among incarcerated populations. Robert G. Lee and Mark Stallworthy bring to the book an analysis based in environmental regulation. As they note, there are clear, historical links between public health and environmental regulation. Their chapter provides an argument in favour of re-evaluation of regulation and environmental law. Rather than base environmental concerns on local problems, such as the direct impact of industry, they urge for a position that can account for, and respond to, global problems of unsustainable consumption. Lee and Stallworthy describe how debates in regulation for the last 35 or so years have centred on evaluative contrasts of command and control models versus economic, market-based regulatory mechanisms. They note, however, that even given the development of the latter approaches (for example, in emissions trading), the traditional, inefficient command and control model still has a widespread presence. Their chapter considers the important role that criminal law has played in environmental regulation, but also looks to the more sophisticated, non-criminal sanctions that are now found. Referring to Ayres and Braithwaite’s seminal work on responsive regulation, Lee and Stallworthy demonstrate the nuances that in fact exist within a command and control system; allowing for regulatory responses far short of criminal sanction. Drawing from practical examples in contemporary environmental regulation, however, they demonstrate how it fails to properly engage with non-local concerns, concerns over time, especially ones based on inter-generational justice and resource depletion. To overcome these problems, a much wider network of activities and actors will need to be brought under the regulatory framework. As the regulation moves away from command and control, a more subtle approach

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to using criminal law will be required. Historically, criminal law has been used to protect public health and prevent environmental pollution. Current environmental problems, and approaches to regulation, suggest a strong need to reconceptualise how regulation can achieve desired objectives. David Fidler’s chapter explores the international dimensions of the relationship between public health and criminal law. While public health authorities have begun to use more inter-governmental institutions and legal mechanisms to address issues of global health, the relevance for international criminal law to protect public health has largely arisen outside traditional global health governance channels. The chapter examines three different ways in which States address crime: (1) general purpose criminal law cooperation; (2) elevating certain crimes in international law, and; (3) developing and enforcing international crimes related to armed conflict. Fidler then proceeds to analyse the complex relationship between criminal law and public health by focusing on two serious global health threats – illicit trade in tobacco products and fraudulent medical products  – to examine how questions of population health impact on questions about order, security and justice in a globalised world. According to Fidler, ‘the more criminal law overlaps with public health in global governance, the less health security individuals and populations have. In this sense, criminal law represents a suboptimal way to advance population health and health security in world affairs’ (p. 238).

Conclusion

The nature and scope of both criminal law and public health have important philosophical and practical implications for how we ought to collectively attempt to use the powers and institutions of the State to advance the health of the population through potentially coercive and punitive means. The contributions to this volume provide examples and analyses of the various contexts and ways in which the interaction between criminal law and public health can exhibit positive similarities as well as negative differences. This is certainly revealed when examining the different ways in which using the criminal law as a tool for promoting public health can act as either a benefit or barrier depending on the issue and circumstance. Criminal law is but one regulatory tool that scholars and ­practitioners should keep mind when seeking to advance public health goals. Even when the State or its officials would be justified in using criminal law or the criminal justice system to promote or protect public health, the

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desirability of its use must also remain a prime concern. Even when there appears to be a net benefit to the health of the community, we should not fail to evaluate and balance all of the material and nonmaterial harms or benefits that can occur through the use of criminal law. The contributions to this volume show that the permissibility and desirability of using the criminal law to advance public health needs to be judged on a case-by-case basis. When criminal law is used, it should be selective and precise in its targeting of subjects. Such targeting should be reasonable, limited and proportionate to the public health goal in question. Criminal law should be supported by evidence of effectiveness – not only in terms of material considerations of reducing the burden of disease, disability and injury, but also in terms of balancing those non-material considerations that may also be part of the process, such as rights violations, stigmatisation, shame and fear. Criminal law should be subject to procedural protections, such as due process and appeals mechanisms, to avoid arbitrary, discriminatory or erroneous uses. Criminal law should be used knowing that, as a blunt instrument, it risks developing unintended consequences of being overinclusive, ineffective or counterproductive in improving the health of the population. This is going to mean that criminal measures should be subject to revision or removal, and will require on-going monitoring and evaluation in order to assess their consequences and measure their effectiveness. Finally, in considering some of the ways in which criminal law can be used to advance public health, it is worth highlighting some future directions that will impact on their interaction. While the jurisdiction of criminal justice systems has foremost been a national matter, in many countries there are many criminal law issues that are now supranational or international in scope. As a result, there will be areas where criminal law and public health intersect that increasingly will become intergovernmental or global governance issues. Prominent examples include initiatives related to environmental protection, infectious diseases and drugs. The methods and techniques developed for population-level health investigations and interventions can differ from those that target the criminal qua individual. Understanding the relevant targets of interventions to be both individuals as constituents of populations and populations themselves will require more work not only on what should constitute a criminal law or public health problem, but also the relevant kinds of harms and wrongs that should be addressed using either criminal law or public health tools. Both the educative function of criminal law in highlighting those forms of behaviour that constitute harmful wrongdoing and the guidance function that elucidate the reasons we

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have to avoid those behaviours raise questions about how we should understand moral and legal culpability. As such, questions about how we should respond to culpable behaviour will also remain a central focus into the future. In addition to those insights from moral and legal theorists, the work of behavioural geneticists, cognitive scientists and social psychologists will continue to make ever important contributions to our understanding of questions surrounding desert, blame, sanction, praise and reward and their relevance for dispositions and behaviours related to public health.

2

Criminal law, regulatory frameworks and public health Roger Brownsword



Introduction

Unless there is a reason for thinking that it is never appropriate to make use of the criminal law for public health purposes (and I know of no such reason), it will be for regulators to assess whether, in each particular case, such a strategy passes muster as both legitimate and effective. Lest we should assume that well-intentioned public health interventions, backed by the criminal law, will comfortably survive any such regulatory assessment, we should take note of Larry Gostin’s cautionary remarks: [T]he generalized use of the criminal law is unlikely to become an effective tool for public health. It discourages exactly those behaviors necessary for the collective good  – testing, disclosure, and participation in clinical and public health programs. The criminal law also invites surveillance, selective enforcement, and discrimination.1

Clearly, where the criminal law operates in ways that are ineffective or even counterproductive relative to the governing regulatory purposes (whether those purposes concern public health or other public goods), there are reasons for employing more effective strategies.2 However, the focus of this chapter is not on the effectiveness of criminal law interventions but rather on the legitimacy of the criminal law (or other coercive regulatory strategies) being employed in support of public health purposes. Given this focus, the central question is: by reference to which standard(s) should we assess the legitimacy of the use of the criminal 1 Lawrence O. Gostin, Public Health Law (Berkeley, University of California Press, 2000), 234. 2 Compare, e.g., Catherine Dodds, Adam Bourne, and Matthew Weait, ‘Responses to Criminal Prosecutions for HIV Transmission Among Gay Men with HIV in England and Wales’, (2009) 17(34) Reproductive Health Matters, 135–45. So counterproductive is the particular intervention that the authors are moved to remark: ‘The aim of the criminal justice system is to carry out justice, not to improve public health’ (at 143).

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law (or other coercive regulatory strategies) for particular public health purposes? For example, would it be legitimate if the State penalised the smoking of tobacco in both closed and open public spaces or if it punished persons who do not submit to vaccination programmes? Would it be legitimate (if not always smart) to criminalise the spreading of dangerous or sexually transmitted diseases or to penalise an individual who exceeds a specified BMI score? Is the criterion of legitimacy one that is of general application for the use of the criminal law (a general justifying standard) or is it one that is of particular application where the regulatory purposes concern the promotion of public health? Not altogether surprisingly, the answer to such questions might well depend upon whether the respondent approaches the matter from a public health perspective or from the perspective of a cautious liberal criminal lawyer.3 From the former perspective, the answer is likely to be that the promotion of public health, including by the use of measures that resort to the criminal law, has to be justified by reference to the criterion of the general utility. Provided that the criminal law is used in a way that plausibly promotes a healthier community, it can be justified. By contrast, if the question is viewed through a liberal lens, a more restrictive response will be given. For liberals, it is important that individuals – or, at any rate, individuals of an appropriate maturity  – should be permitted to make their own lifestyle choices. From this perspective, no encouragement should be given to the ‘public health police’ who stand by ready to enforce the paternalistic requirements and constraints of the ‘nanny State’. Which response has the better credentials? In this chapter, I will offer a response that has echoes of both sides of this debate. On the one hand, I want to side with the liberals, arguing that competent adults should be permitted to make their own decisions as to what lies in their own best interest. If I prefer to watch football in the pub, drink some beer, and then go for a curry, rather than taking the dog for a walk in the park, that is my choice; and, if too much of this is bad for my health, then that 3 As Gostin (Gostin, Public Health Law, at 20) sets the scene for the debate ­t hus: Any theory of public health law presents a paradox. Government, on the one hand, is compelled by its role as the elected representative of the community to act affirmatively to promote the health of the people. To many, this role requires vigorous measures [including criminal law measures] to control obvious health risks. On the other hand, government cannot unduly invade individuals’ rights in the name of the communal good. Health regulation that overreaches, in that it achieves a minimal health benefit with disproportionate human burdens, is not tolerated in a society based on the rule of law.

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is my problem. On the other hand, I want to say that public health is a special case where the regulatory ground rules are different – where, indeed, we might tolerate criminal law prohibitions that we would not find acceptable in other contexts. However, I also want to say that the criminal law is not the only kind of coercive regulatory instrument that liberals need to worry about; and that any special ground rules apply only where the regulatory intervention has a highly specific purpose, namely to protect the essential infrastructural conditions for human agents to act. The chapter is in two principal parts. In the first part, developing the liberal dimension of my response in the setting of modern regulatory environments, I argue that, as regulators find new and smarter ways to channel conduct, the fact that they do not rely on criminal law measures is not necessarily determinative. Before liberals can sleep easy, they need to take a hard look at how the regulatory environment is tilted and tightened.4 In the second part, I develop the public health dimension of my response, arguing that the protection of the essential infrastructural conditions is something that all constituencies, including the liberals, must rationally sign up to. To be sure, there might be different views about where the line is to be drawn between those conditions that are part of the essential infrastructure and those that are not. In principle, though, the idea is that regulators, exercising a ‘stewardship’ jurisdiction, would enjoy far more freedom not only to intervene, but also as to the kinds of instruments of intervention that they use, where the essential infrastructure is at stake. The ‘take home message’ is that there needs to be a mix of robustness and restraint on both sides. In communities with liberal commitments, while the public health lobby should not push for exceptional reliance on the criminal law or other coercive regulatory instruments unless the purpose is to protect the essential infrastructure, everyone should recognise that, without a secure platform of public health, there will be little life to live, let  alone options for individual lifestyles. At the same time, while liberals should robustly defend their commitment to self-determination, they need a ‘heads-up’ to alert them to the full range of coercive regulatory strategies that might be in play; and those who advocate strong public health interventions should make use of 4 Although my conception of a ‘regulatory environment’ is implicit in Rights, Regulation and the Technological Revolution (Oxford University Press, 2008), it becomes much more explicit in ‘Lost in Translation: Legality, Regulatory Margins, and Technological Management’, (2011) 26 Berkeley Technology Law Journal 1321 and ‘Responsible Regulation: Prudence, Precaution and Stewardship’, (2011) 62 Northern Ireland Legal Quarterly 573.

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the most effective instruments provided that they are targeted on the ­essential infrastructural conditions.

Liberalism and modern regulatory environments

When the Nuffield Council on Bioethics reported on the ethical issues arising in relation to public health,5 Millian liberal principles gave confident answers to some of the questions.6 For example, if it is accepted that smoking in closed public places is harmful to others, then there is clearly a prima facie case for criminalisation; no one could accuse such a covering criminal measure as paternalistic in its intentions. By contrast, if it were to be proposed that smoking in open public areas should also be criminalised, even though there is no physical harm to others, this would seem like a clear case for liberal resistance. To the extent that such issues are arbitrated by reference to Mill’s harm principle, we know that we will run into a host of grey cases where the meaning of harm, the identity of others, and the proximity of the act to the alleged harm will prove fragile and contestable. However, the problem with the harm principle, and the challenge for modern liberals, lies elsewhere. It is not coercion exercised in the form of the criminal law but the tilt and tightening of regulatory environments that is the critical space to watch. We can elaborate this idea in three steps: first, by differentiating between the formal (procedural) aspect of the liberal view and its substantive manifesto for the criminal law; second, by distinguishing between the normative and the non-normative signals that populate modern regulatory environments; and, third, by considering some test cases for the application of liberal principles.

The liberal view of the criminal law

I take it that liberals will make two sets of demands in relation to the employment of the criminal law. One set of demands is formal and procedural, the other substantive. The fundamental formal demand is one of transparency: whatever it is that is to be criminalised, it should be made crystal clear that the conduct in question is now prohibited and that failure to comply is subject to penal sanctions. This demand can be enhanced and 5 Nuffield Council on Bioethics, Public Health: Ethical Issues (London, ­2007). 6 John Stuart Mill, ‘On Liberty’, in J. S. Mill, Utilitarianism (edited by Mary Warnock) (Glasgow, Collins/Fontana, 1962).

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embellished in various ways – for example, by building in a requirement of ­proportionality between the seriousness of the offence and the penal response, by arguing against indeterminate sentences, by calling for ‘fair labelling’ of offences, by arguing for a policy of minimum criminalisation, and so on.7 However, the critical concern for liberals is that agents should not be exposed to the conjunction of moral censure, stigma, and personal deprivation that is characteristic of criminal law interventions without at least being given a fair warning that they are at risk in this way. Liberals want to know where they stand. From the liberal standpoint, a criminal code that meets such formal demands will satisfy one of the necessary conditions of legitimacy. However, this is not yet sufficient. Liberals also set substantive limits on the scope of the criminal law. Crucially, the criminal law should not encroach on conduct that lies within the private zone. Within this zone, liberals hold that agents should be free to act in whatever way they judge to be in their self-interest, or simply as their inclination moves them – that is to say, they should be free to so act without being constrained by the criminal law.8 In the case of R v. Brown,9 we can see both these liberal concerns at work in the dissenting speech given by Lord Mustill. In Brown, the question was whether, in a context of adult sadomasochistic practices, the consent of the participants was recognised by English law as a defence to charges of assault and wounding. Lord Mustill, arguing against the majority ruling that consent is no defence in this context, was troubled by (i) the extension of Victorian criminal offences to activities that would not have been within the contemplation of the legislators and (ii) the implications, in a free society, of penalising conduct that occasions no harm to an unwilling other but which is nevertheless viewed by some as offensive or uncivilised. If Lord Mustill’s first concern was that 7 For a very helpful review of a range of principles and policies (by no means all ­liberal) that are actually in play in the criminal law, see Andrew Ashworth, Principles of Criminal Law (Oxford, Clarendon Press, 1991), ch. 3. 8 The assumption here is that liberals put a premium on self-direction. Thus, as Joel Feinberg puts it in ‘The Idea of a Free Man’, reprinted in his edited collection, Rights, Justice, and the Bounds of Liberty (Princeton University Press, 1980) at 19: The point of calling individual self-direction freedom … may be to emphasize the overriding importance of one particular kind of desire or option, namely, that [i.e. that option] to decide for oneself what one shall do. Even wise and benevolent external direction is a constraint to the desire, actual or possible, to decide for oneself. Hence there is a point in calling the absence of that constraint (or the presence of self-direction) freedom. [1993] 2 All ER 75.

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the criminal law should be transparent, his second concern was that it should not set illiberal limits on lifestyles. To focus on public health, it follows that liberals will insist that any criminalisation of conduct for public health purposes (i) should be in line with the fair warning requirements and (ii) should respect the substantive limits. Accordingly, if the criminal law is used simply to enforce what is judged to be a healthy lifestyle, liberals will object;10 and, if the criminal law is so used without clearly advertising that this is its intent and effect, liberals will doubly object. Given such a standpoint, liberals need to be alert to those regulatory interventions that are designed to enforce what is judged to be a healthy lifestyle but which are effectuated without using the criminal law. In other words, in modern regulatory environments, liberals need to be aware that there might be interventions that do not naturally provoke their formal objections but which, nevertheless, are out of line with their substantive views. To appreciate how such measures might fly below the liberal radar, we need to say more about the general idea of a regulatory environment and, in particular, about the different kinds of signals that regulators might use.

The regulatory environment: normative and non-normative signals

One of the themes in the chapter is that liberals should be attentive to the full range of the regulatory repertoire, a repertoire that not only includes a variety of legal instruments but also instruments that channel behaviour in quite different ways. Even if the law – even if the criminal law – is an important part of the regulatory environment, it is far from being the whole story. Moreover, while the criminal law, like much of the regulatory environment, transmits normative signals (prescribing what ought or ought not to be done), liberals also need to keep an eye on the use of strategies that operate by transmitting signals that speak to what can and cannot be done rather than what ought or ought not to be done. Indeed, liberals might well revise their view that the criminal law is the ultimate regulatory instrument. To put the question directly: which is more threatening to liberal values, the threat (and application) of a criminal penalty for riding the Metro just one stop (rather than 10 Compare, e.g., Martha C. Nussbaum, Creating Capabilities (Cambridge, Mass., The Belknap Press of Harvard University Press, 2011) at 26 (arguing against a paternalistic function-oriented approach to health, whereby governments would use their power ‘to make people take up healthy lifestyles’. Nussbaum says that she, like Amartya Sen, does not agree with such paternalism ‘because of the high value we ascribe to choice’).

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walking the short distance), or the introduction of a transport system that simply designs out the possibility of riding without paying? There is much in these remarks that invites clarification and elaboration. Let me try to take this forward by addressing the following four matters: the basic idea of regulation and the regulatory environment; two framing mistakes that liberals should avoid; the key regulatory signals employed by regulators; and three generations of regulatory environment.11 Regulation and the regulatory environment The general idea of regulation is that of a ‘sustained and focused attempt to alter the behaviour of others according to standards or goals with the intention of producing a broadly identified outcome or outcomes, which may involve mechanisms of standard-setting, information-gathering and behaviour-modification.’12 Regulation is thus operationalised through a combination, or cycle, of direction, detection, and correction. It follows that, in a regulatory environment, there will be various signals that are intended to direct the conduct of regulatees; there will be various means of monitoring conduct to see whether the directions are being followed; and, where deviation is detected, there will be measures for correction. In such environments, regulators signal whether particular acts are permitted (even required) or prohibited, whether they will be viewed positively, negatively, or neutrally, whether they are incentivised or disincentivised, whether they are likely to be praised or criticised, even whether they are possible or impossible, and so on.13 Whilst some environments are regulated in a top-down law-like fashion (with regulators clearly distinguishable from regulatees), others are more bottom-up, more self-regulatory, and more reliant on ‘governance’ than hard law. Moreover, while some regulatory environments are reasonably stable and well formed, others are unstable, overlapping, conflictual, and so on.14 11 In this part of the discussion, I draw on my paper, ‘Responsible Regulation’. 12 Julia Black, ‘What is regulatory innovation?’, in Julia Black, Martin Lodge, and Mark Thatcher (eds.), Regulatory Innovation (Cheltenham, Edward Elgar, 2005), pp. 1–15, at 11. For two background visions of regulation (one as an infringement of private autonomy justified only by considerations of economic efficiency, the other as a much broader collaborative enterprise), see Tony Prosser, The Regulatory Enterprise (Oxford University Press, 2010), ch.1. 13 Compare Roger Brownsword and Han Somsen, ‘Law, Innovation and Technology: Before We Fast Forward  – A Forum for Debate’, (2009) 1 Law, Innovation and Technology 1. 14 See, further, Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’, LSE Working Papers, 2/2008.

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There is a huge amount of complexity in the seemingly innocent idea of a regulatory environment. However, for present purposes, two points perhaps should be highlighted. First, whereas in some regulatory environments the legal signals will be in the foreground, in others, they will be in the background (the implication being that non-legal signals are doing most of the regulatory work); and, second, in some cases, the regulators’ intentions will be translated into signals that use a normative register but, in others, the normative register will be displaced by the particular technological fix that is employed. Two framing mistakes Picking up on the two points just highlighted, liberals (and, above all, liberal lawyers) need to be careful to avoid two framing mistakes with regard to the idea of a regulatory environment. First, there is the mistake of legal exclusivity – which makes the assumption that the only signals in the regulatory environment are formal legal signals. One of the key points about the regulatory environment is that regulators might employ a range of mechanisms or modalities that are designed to channel the conduct of their regulatees. Some of these modalities may well be legal. It is not that regulatory environments never feature legal signals; and, in many instances, it will be the legal signals (not least, the criminal law signals) that have the highest profile. Nevertheless, the regulatory repertoire goes well beyond legal signals. Seminally, Lawrence Lessig has identified the following four regulatory modalities: the law, social norms, the market, and architecture (or, code).15 So, for example: The government may want citizens to wear seatbelts more often. It could pass a law to require the wearing of seatbelts (law regulating behavior directly). Or it could fund public education campaigns to create a stigma against those who do not wear seatbelts (law regulating social norms as a means to regulating behavior). Or it could subsidize insurance companies to offer reduced rates to seatbelt wearers (law regulating the market as a way of regulating behavior). Finally, the law could mandate automatic seatbelts, or ignition-locking systems (changing the code of the automobile as a means of regulating belting behavior). Each action might be said to have some effect on seatbelt use; each has some cost. The question for the government is how to get the most seatbelt use for the least cost.16

15 Lawrence Lessig, Code and Other Laws of Cyberspace (New York, Basic Books, 1999), ch 7; and Lessig, ‘The Law of the Horse: What Cyberlaw Might Teach’, (1999) 113 Harvard Law Review 501, 507–514. 16 Lessig, Code, at 93–­94.

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The significance of these different modalities is not just that there is more than law in the regulatory mix; for, once the modality moves away from law and social norms, to market, architecture, and code, the signal to regulatees can change from being normative to non-normative in character. This takes us to the second framing mistake, the mistake of normative exclusivity  – which makes the assumption that the only signals in the regulatory environment are normative (that is, signals that prescribe what ought, or ought not, to be done). Again, laws are normative, as of course are social norms. Market signals might also speak to what ought (or ought not) to be done, not so much as a matter of respect for others but simply what ought (or ought not) to be done in one’s own interest. For example, where a ‘green’ tax is added to the price of larger cars or to fuel, we might reason that we ought to drive a smaller car because larger cars are expensive and put a strain on our personal finances. However, if the price of larger cars is increased beyond our means, our reasoning shifts from the normative mode to the non-normative mode of practicability – it is not so much that, as a matter of self-interest, we ought not to buy a large car but that we simply cannot (afford to) do so. When the regulatory modality is that of architecture or code, or the like, we might well find that the signal is one of (non-normative) practicability or possibility. However, as with market signals, there might be elements of both normativity and non-normativity – witness, for example, Mireille Hildebrandt’s important distinction between ‘regulative’ (normative) and ‘constitutive’ (non-normative) technological features.17 So, for example, if a car is equipped with sensors that can detect alcohol in the driver, it might be designed to respond normatively (by advising that it is not safe for the driver to proceed) or non-normatively (by immobilising the car). Three kinds of regulatory signals We can tighten our grip on the significance of the different regulatory modalities by identifying the key kinds of signals that regulators employ to engage the practical reason of regulatees. The signals operate with the following three registers as follows: (i) the moral register: here regulators signal that some act, x, ­categorically ought or ought not to be done relative to standards of right action (as in retributive articulations of the criminal law where the emphasis is on the moral nature of the offence); or 17 Mireille Hildebrandt, ‘Legal and Technological Normativity: More (and Less) than Twin Sisters’, (2008) 12.3 TECHNE 169.

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(ii) the prudential register: here regulators signal that some act, x, ought or ought not to be done relative to the prudential interests of regulatees (as in deterrence-driven articulations of the criminal law where the emphasis is on the sanction that will be visited on offenders); or (iii)  the register of practicability or possibility: here regulators signal that it is not reasonably practicable to do some act, x, or even that x simply cannot be done – in which case, regulatees reason, not that x ought not to be done, but that x cannot be done (either realistically or literally). In an exclusively moral environment, the primary normative signal (in the sense of the reason for the norm) is always moral; but the secondary signal, depending upon the nature of the sanction, might be more prudential. In traditional criminal law environments, the signals are more complex. Whilst the primary normative signal to regulatees can be either moral (the particular act should not be done because this would be immoral, or  – in Millian liberal orders  – the act would be harmful to others) or paternalistically prudential (the act should not be done because it is contrary to the interests of the regulatee), the secondary signal represented by the deterrent threat of punishment is prudential.18 Where there is an increasing reliance on regulatory technologies (for example, CCTV, DNA profiling, RFID tracking and monitoring devices, and so on)19 the strength and significance of the moral signal fades. First, the dominant signal to regulatees tends to be a prudential one, accentuating that the doing of a particular act is contrary to the interests of regulatees (because they will be detected and punished); and, then, in a later drift, the signal becomes that an act is either not practicable (such as trying to board an aircraft for an international flight without going through the security scans) or simply not possible.20 Three generations of regulatory ­environment Regulatory strategies that employ a technical fix (‘techno-regulation’) have their own specialist modalities; put shortly, they might focus on 18 Compare Alan Norrie, ‘Citizenship, authoritarianism and the changing shape of the criminal law’, in Bernadette McSherry, Alan Norrie, and Simon Bronitt (eds.), Regulating Deviance (Oxford, Hart, 2008) 13–34; and Lucia Zedner, ‘Fixing the future? The pre-emptive turn in criminal justice’, in McSherry, Norrie, and Bronitt (eds.), Regulating Deviance, 35–58. 19 Compare Mark A. Rothstein and Meghan K. Talbott, ‘The Expanding Use of DNA in Law Enforcement: What Role for Privacy?’, (2006) 34 Journal of Law, Medicine and Ethics 153, at 160–61. 20 Compare Bert-Jaap Koops, ‘Technology and the Crime Society: Rethinking Legal Protection’, (2009) 1 Law, Innovation and Technology 93.

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designing the fix into products, places, or persons.21 Thus, regulators might specify certain safety, or privacy-enhancing, or copyright-protecting features to be designed into products; or they might specify certain architectural features to improve safety (as in the layout of roads) or to facilitate transparency (think about the Bundestag building in Berlin) or adversarial political debate (think about the layout of the House of Commons at Westminster); or, in some future world, they might specify that only those human embryos that have acceptable genetic profiles should be implanted for reproductive purposes. If we shuffle these ideas, we can imagine three ideal-typical generations of regulatory environment. In a first-generation regulatory environment, regulators would rely exclusively on normative signals. In a second-generation regulatory environment, regulators would rely on both (first-generation) normative signals and second-generation design of products and places. Where regulators rely on such a design strategy, the signal might no longer be normative; instead, the design features signal what is practicable or possible (in the way that the smart car is immobilised on sensing drink or drugs in the driver). Finally, in a third-generation regulatory environment, regulators would go beyond traditional normative signals and design of products and places by incorporating the regulatory design within regulatees themselves (for example, by means of pharmacological intervention, or neurosurgery, or by controlling their genetic coding). Where design is embedded in regulatees in such a way that it channels their behaviour, it is likely to be much less apparent to regulatees that they are being regulated – if the design is reliable, regulatees will simply behave (like products or, for that matter, robots) in accordance with their specification.

Test cases for liberals

To return to public health, liberals should monitor both what regulators are intending to achieve and how they are trying to achieve it. Criminal laws tend to be high profile; the sanctions will not deter conduct unless regulatees know that there are penalties in play. If criminal sanctions impinge on the protected zone of private conduct, liberals should object; and, if regulators so impinge by strategies of stealth, then they should object twice over. What, then, might liberals make of the following five test-case public health interventions?

21 See Roger Brownsword, ‘Code, Control, and Choice: Why East is East and West is West’, (2005) 25 Legal Studies 1, 12.

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Restaurants and calorie counts Let us suppose that a criminal law is enacted that requires restaurants to print the calorie count of each meal on the menu; failure to comply with this requirement will attract a fine. Whether this information will have any impact on the long-run calorie consumption of regulatees, or reduce concerns about obesity, remains to be seen. However, even if the intervention ‘works’, might liberals object? Arguably, liberals might take two points. First, even though those who eat in restaurants are not subject to any fresh criminal penalties (they can ignore the calorie counts with legal impunity), liberals might be troubled by the more subtle pressure that is being applied. It is one thing for the State to take steps to raise public awareness about calorie intakes, but there surely is a difference between calorie information that is part of the background noise or that is buried in the small print of a chocolate wrapper and information that is right in the foreground and, so to speak, ‘in your face’. Second, even if liberals accept that it is permissible for the State to tax and spend on public awareness campaigns, they might question placing the informational responsibility (backed by criminal sanctions) on restaurant owners. The first objection is based on the liberal antipathy towards paternalism. There is a fine line between facilitating an informed choice and trying to steer the choice made by the individual. Possibly, liberals will accept that the good faith of regulators is sufficient – that is, that it is enough if regulators are simply trying to facilitate informed choice, and nothing more than that. However, regardless of the intentions of regulators, if liberals hold that the way in which the information is presented is relevant and/or that its general impact must be taken into account, we have a much more finegrained principle, the application of which will vary from case to case. In any event, if regulators are actually trying to steer their regulatees towards less calorific meal choices, liberals will object that this crosses the line. With the second objection, the critical question is how far liberals recognise that we have informational responsibilities to one another.22 In modern societies, with high degrees of specialisation and mass consumption, there is a pressure to correct the informational asymmetries that inevitably arise. Even so, liberals will need some persuading that it is rightly the responsibility of restaurants to inform their customers as to the calorific value of their menu options, let  alone to impose a requirement of disclosure that is backed by the criminal law. 22 See, further, Roger Brownsword, ‘Informed Consent in the Information Society’, Health and Society Review (special issue, edited by Carla Faralli, 2012), 161–88.

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Smoking bans In many places, there are prohibitions on smoking in closed public places. If it is accepted that smoking in closed places is harmful to others, then this is an easy case. Moreover, in practice, if there are both smoking and non-smoking zones (like smoking and non-smoking rooms in hotels), this allows for all interests to be accommodated. If regulators move on to ban smoking in open public spaces, it is much less clear that this can be squared with liberal principles – and, a fortiori, if they ban smoking in the privacy and solitude of one’s own home or one’s car. Generally, it is not convincing to argue that passive smoking is a risk in open spaces; and, even if discarded cigarette butts are a nuisance, the standard prohibition on litter surely suffices. This leaves the argument that smokers fail to meet their responsibilities as role models in public places. However, liberals will rightly ask how far this goes. When we are in public places, should we stop eating candy or high-calorie food, should we make a point of walking rather than riding on public transport, of using stairs rather than escalators or elevators, and so on? Public health enthusiasts might not like these liberal constraints; but, if we profess to be liberals, we need to respect the limits set by our commitments. Positive and negative ‘loading’ Is there a liberal objection if regulators try to advance public health objectives by loading conduct (for example, by using financial incentives or disincentives)? Arguably, wherever regulators attempt to channel regulatees towards a conforming (healthy) option, there is a violation of liberal principles. However, if a less confining line is taken, it is arguable that, where the loading is ‘positive’ – for example, where regulators offer financial incentives (such as tax breaks for cyclists) or support (such as free fruit in public places) – there is no problem. Granted, such initiatives bear on prudential calculation; but, regulatees can take or leave the loaded option without loss. If they decline the healthy option, there is no detriment to their ex ante situation. By contrast, where the loading is ‘negative’ – for example, where regulators apply a tax to unhealthy foods, or to tobacco or alcohol – the only way of avoiding a detrimental change of position is to take the healthy option. In practice, for some regulatees, the tax might mean that they are priced out of the market (that the healthy option is now the only option); but, even for those who can persist with the unhealthy option, there is a detriment. Liberals must regard such interventions – that is to say, interventions that are straightforwardly calculated to substitute regulatory judgments

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of what is in the regulatees’ best interest for the prudential judgments of regulatees themselves – as unacceptable.23 Nudges On my laptop, the default font setting is Calibri; but I prefer Times New Roman and I usually switch the setting. In many contexts, default rules or designs of this kind are unavoidable; and provided that we know that we can change the settings, if we prefer something different, we might think that all is well. However, what if the default setting is not arbitrary? What if the setter prefers a particular default and hopes that the user will stick with it? Consider the way in which a screening programme for a particular condition, let us say for prostate cancer, is rolled out. It needs a default pitch but there are a number of options. For example, the default might be: • D1: general notice of the screening programme is given, but no one is specifically invited to participate; the onus is on men to request the test (general notice opt-in); or, • D2: target males are personally notified about the screening programme but it is left to individuals to request the test (personal notice opt-in); or • D3: target males are personally notified about the screening programme, they are given an appointment for the test and they are expected to take the test unless they expressly indicate otherwise (personal notice opt-out). No doubt these defaults can be finessed in various ways. However, the point is that, although target males have the option in all cases of taking or not taking the test, D3 steers much more strongly towards the test than D1; and, human nature being what it is, it is likely that the take-up rate under D1 will be low in contrast with a high take-up rate under D3. Of course, it is not just the default settings in screening programmes that are at issue. By setting defaults in architecture, in products, or at restaurants, and the like, regulators can try to ‘nudge’ regulatees towards healthy options.24 There is no disguising the paternalistic 23 I am grateful to the editors for pointing out that the regulatory objective might be less straightforwardly directive. For example, a tax on an unhealthy lifestyle might be intended to operate, not as a disincentive in relation to that lifestyle, but as a contribution (or an insurance premium) towards the cost of public health care. If liberals can live with publicly funded health care, then it does not follow that they ‘must’ (as per the text) regard such interventions as unacceptable. 24 Seminally, see Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, Yale University Press, 2008).

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intentions of regulators. However, advocates of such a strategy like to defend it as compatible with liberal principles because there is the option to opt-out; no one is forced to eat salad rather than fries, to use the stairs rather than the elevator, or to walk rather than ride. Even if such a strategy survives the liberal concerns about paternalism (because the healthy option can be avoided), there are two important caveats. One is that, in principle, a nudge should be adopted as a matter of public policy only where (a) there has been public engagement on the issue and (b) it is clear that regulatees prefer such a default.25 The other reservation is that, in some contexts, the ‘paper’ opt-out will no longer be a ‘real’ option.26 Where it is not reasonably practicable to opt-out, regulatory paternalism is no longer compatible with a liberal ethic. This latter caveat takes us to our final case. More than a nudge If a high-rise office block has both stairs and elevators to all floors, there will come a point (maybe where offices are more than ten floors up) at which we will say that it is no longer reasonably practicable to use the stairs. Where there are no stairs, just elevator access, the design has hardened: it is no longer possible to use stairs. In this hypothetical, the features cut against public health objectives. However, what if the features operate in the other direction? What if the only possible act is one that is health-conforming? For example, what if fluoride is added to the only available water supply or what if, in future, our genetic profiles have been cleansed of any markers for unhealthy dispositions? Such strategies promise perfect compliance, complete achievement of the paternalistic purposes that regulators have. But, of course, in two respects – one a lack of transparency and the other the paternalism that underlies the intervention – there seem to be plain violations of liberal principles. In the hypothetical, the assumption is that regulators simply decide to add fluoride, or some other chemical, to the water supply. However, there might be two ways in which regulators might be able to justify such a measure. One justification hinges on public approval of the intervention. Let us suppose that, before fluoride has been added, there has been widespread and inclusive public engagement; that regulators have set out the expert case for adding fluoride to the water; that there 25 For an elaboration of this caveat, see Brownsword, ‘Lost in Translation’. 26 This is a familiar problem that can arise in many contexts: see, e.g., Sonia M. Suter, ‘A Brave New World of Designer Babies?’, (2007) 22 Berkeley Technology Law Journal 897. Currently, it is becoming a key point for discussion in debates about the legitimacy of using performance-enhancing drugs (such as cognition enhancers).

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has been public debate about, and scrutiny of, the case; and that public opinion has been surveyed and found to be supportive of the measure. While this might not be a measure that has unanimous support, liberals will recognise that it has far better credentials than first indicated by the hypothetical. Indeed, liberals might well concede that, if processes of deliberative democracy endorse regulatory interventions that design out the option of non-compliance, this is fine. The second line of justification is that the water supply is part of the essential infrastructure for public health. Water might need to be treated before it is fit for human consumption and a regulatory decision to introduce chemicals for that purpose will be justifiable under the stewardship jurisdiction that we will elaborate in the next part of the chapter. It remains only to add that, given the controversies about the properties of fluoride, we should not assume that fluoride would be recognised as a chemical that needs to be added to make the water fit for consumption.27

Taking stock

The argument in this part of the chapter is that it is not only the use of the criminal law for public health purposes that should alert liberals. Where substantive criminal law provisions transgress the limits set by liberals, it is right to insist that individuals should be left to be their own judges of what is in their own best interests. If they want to eat, drink, and be merry, or if they do not want to be role models for a particular vision of good health, this should be their choice; and their choice should not be constrained by the criminal law. However, with smarter approaches to regulation, the criminal law might not be the instrument of choice; instead, subtler pressures might be applied but with the same guiding regulatory purposes. Moreover, in future, regulatory direction might go beyond pressure (beyond the threat of censure or sanctions) in a way that leaves regulatees with no choice but to conform with the approved public health pattern. Arguably, for liberals, a regulatory environment, lacking in transparency and coded for public health paternalism, is the worst case scenario.

Public health, stewardship, and the essential infrastructure

The notion of ‘stewardship’ is a peg on which many ideas can be hung – for example, the Presidential Commission for the Study of Bioethical 27 See Nuffield Council on Bioethics, Public Health, ch. 7.

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Issues highlights (responsible) stewardship as a regulatory principle that ‘calls for prudent vigilance, establishing processes for assessing likely benefits along with safety and security risks both before and after projects are undertaken.’28 In the particular context of public health, however, the Nuffield Council on Bioethics takes stewardship to include (among other things): • Securing basic environmental conditions (clean drinking water, basic housing) • Securing access to medical services • Protecting and promoting the health of children and the vulnerable • Reducing unfair health inequalities.29 For my own part, I take the core sense of stewardship to concern securing the basic conditions (the essential infrastructure) for human health and well-being, such conditions including clean water, housing, and medical services, as in the Nuffield list. As stewards for these conditions, regulators have a responsibility for both present and future generations.30 Given that the regulatory stewards (in my sense) are charged with maintaining the conditions for human life, guarding against infrastructural catastrophes, it is arguable that their jurisdiction should be placed outside ordinary politics. Chiming in with the Presidential Commission’s thinking, responsible stewards would exercise prudent vigilance; and they might even be authorised to employ regulatory strategies (meeting infrastructural challenges with a technical fix) of a kind that would be off limits for the routine governance of superstructural activities and lifestyles. Let me elaborate on these sketchy remarks in three ways: first, by speaking to the idea of the essential infrastructure; second, by saying something more about the terms of the stewardship jurisdiction for public health; and, third, by reviewing some test cases.

28 Presidential Commission for the Study of Bioethical Issues, New Directions: The Ethics of Synthetic Biology and Emerging Technologies (Washington, December 2010), at 27. 29 Nuffield Council, Public Health, para. 2.44. For some short follow-up remarks, see Tom Baldwin, Roger Brownsword, and Harald Schmidt, ‘Stewardship, Paternalism and Public Health: Further Thoughts’, (2009) Public Health Ethics 1–4; and for extended critique, see John Coggon, ‘What Help is a Steward? Stewardship, Political Theory and Public Health Law and Ethics’, (2011) 62 Northern Ireland Legal Quarterly 599. 30 So far as public health is concerned, the contrast that I want to draw between the staging of human life (the essential infrastructural conditions for human life) and the living of life itself starts with my two papers: ‘Public Health, Private Right: Constitution and Common Law’, (2006) 7 Medical Law International 201–18; and, ‘Public Health, Private Right and the Common Law’, (2006) 120 Public Health 42–51.

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The essential infrastructure

The general idea of an infrastructure as the underlying support for a system is reasonably settled; and the conventional wisdom is that infrastructures in this sense are found in transportation and communication systems, as well as being constituted by basic public services such as sewers, water, and energy.31 While some infrastructural conditions are specific to particular activities, others are generic in the sense that they are essential for humans to have any prospect of acting, interacting, or transacting in the purposive (goal-directed) way that we associate with agency. Immediately, this prompts the question: what are the key features of the generic infrastructure? Turning this round, we can readily identify the kind of factors that are plainly antithetical to humans enjoying such infrastructural support. For example, we can point to problems with food security and clean water, to environmental pollution, and to the prevalence of disease. Sadly, chronic conditions of this kind can be found in many parts of the world and, following a natural disaster, we will often see some of these conditions in an acute form. In these cases, we can say that the infrastructure is deficient or, in the case of an emergency, that it has collapsed. Where there is such a collapse, it is true that purposive activity does not entirely terminate; but, typically, this will be activity of a remedial and restorative nature. This leads to a second question. How do we draw the line between the generic infrastructure, specific infrastructures, and activities on these infrastructures? It is surely not too difficult to distinguish between generic and specific infrastructures. For example, although railway infrastructures support the running of trains, and although train travel enhances agency, trains are not essential to it. Human agency does not presuppose railway tracks, roads, or any other kind of transport infrastructure. These are not part of the generic infrastructure. We might say much the same about the infrastructural elements of a modern information technology system. Cybercrime is particularly serious when it strikes at these infrastructural elements; and, for those communities that increasingly transact and interact online, this is an extremely serious matter.32 Nevertheless, this is not part of the generic infrastructure. 31 Compare Brett M. Frischmann, ‘An Economic Theory of Infrastructure and Commons Management’, (2005) 89 Minnesota Law Review 917, 923 et seq. 32 Following the devastating denial-of-service attacks on Estonia in 2007, the question of the ­v ulnerability of critical information infrastructures in Europe rapidly moved

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Having said that, it is much less clear how we should distinguish between infrastructures and activities that take place on those infrastructures. An agent’s basic health and well-being can be harmed by the isolated act of another human, by some inhibiting situational threat (such as that of terrorism), or by deficient living conditions. What makes a feature generically infrastructural is that it strikes at the general possibility of agency, irrespective of the agent and of an agent’s particular purposes, rather than the particular occurrent prospects of the agent. Or, to put this another way, there first has to be infrastructure and then there can be activity: while there can be infrastructure without activity, there can be no activity without infrastructure.

The stewardship jurisdiction

This line of thinking invites drawing a distinction between those parts of the regulatory environment that are designed to secure the infrastructural conditions and those parts that are intended to direct the conduct of regulatees as they act, transact, and interact on the infrastructure. Inevitably, there will be cases that are clearer than others: for example, it is clear that, while deficient living conditions are infrastructural, an isolated criminal act (such as an assault) is not; and, depending on the scale and intensity of the threat, we might find it more difficult to classify terrorism. At all events, it is arguable that four major regulatory implications follow from this. First, while all regulators share a responsibility for securing the essential infrastructural conditions, within each community there is room for some (legitimate) variation in the regulation of local activities.33 Second, if the infrastructure is to be secured, this implies a considerable degree of international co-ordination and shared responsibility. Moreover, because politics tends to operate with short-term horizons, it also implies that the regulatory stewards have some independence from the political branch. Third, as I have argued elsewhere, an exceptional form of precautionary reasoning might be acceptable in defence of the essential infrastructure.34 According to such reasoning, where we cannot rule out the up the political agenda: see, House of Lords European Union Committee, Protecting Europe Against Large-Scale Cyber-Attacks (Fifth Report, Session 2009–2010). 33 For further discussion, see Roger Brownsword, ‘Regulatory Cosmopolitanism: Clubs, Commons, and Questions of Coherence’, TILT Working Papers No 018/2010 (University of Tilburg, 2010). 34 See Brownsword, ‘Responsible Regulation’. Compare, too, Deryck Beyleveld and Roger Brownsword, ‘Complex technology, complex calculations: uses and abuses of

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possibility that some activity threatens the infrastructure, then regulators may in good faith apply protective measures even though there is deep uncertainty about the likelihood of the threat materialising and even though such measures involve some sacrifice of a valued activity. Fourth, for communities that have moral aspirations (liberal or otherwise) or that value their individual autonomy, it is important that the regulatory environment does not design out the opportunities for acting freely or doing the right thing.35 Nevertheless, where the regulatory stewards are acting to protect the essential infrastructure, a resort to designed-in solutions may be more readily justified.

Test cases for stewardship

Public health biobanking, which is emerging as an issue for the WHO and for the international regulatory community, gives rise to a host of ethical concerns (concerns that are set to intensify once low-cost sequencing of the biological samples that are banked is available). Moreover, if biobanking improves our understanding of why it is that particular individuals suffer with the most prevalent of diseases, it will generate some important test cases for stewardship. According to the Ethics and Governance Framework, version 3.0 (October, 2007) for UK Biobank (UKB),36 UKB ‘will serve as the steward of the resource, maintaining and building it for the public good in accordance with its purpose. This implies both the judicious protecting and sharing of the resource. It also extends to the careful management of any transfer of parts or all of the database or sample collection.’ Given that the purpose of projects such as UK Biobank is to improve our understanding of the interactions between genetic profiles, physical environments, and lifestyles, and their impact on the health of ­individuals (as well as the health of larger populations), how does stewardship (with an infrastructural focus) fit in? Does any resulting improvement in our understanding relate to the generic infrastructure or simply to agents’ activities on an already secured infrastructure? Do we understand more about how to set the stage (the infrastructure), or is it the performance (the activity) that we understand how to improve? For, to the extent precautionary reasoning in law’, in Marcus Duwell and Paul Sollie (eds.), Evaluating New Technologies: Methodological Problems for the Ethical Assessment of Technological Developments (Springer, Dordrecht, 2009), 175–90; and ‘Emerging Technologies, Extreme Uncertainty, and the Principle of Rational Precautionary Reasoning’, (2012) 4 Law, Innovation and Technology 35. 35 See, further, Brownsword, ‘Lost in Translation’. 36 www.ukbiobank.ac.uk/wp-content/uploads/2011/05/EGF20082.pdf.

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that it is infrastructural, the stewardship jurisdiction may be invoked with all that this entails for the character of the regulatory environment. However, we need to be careful – and nowhere more so than in a community with liberal commitments, where agents value the opportunity to choose their own lifestyle. Even if there is a public health concern about, let us say, obesity, as Inez de Beaufort has provocatively asked, why shouldn’t those who have a sweet tooth carry on eating ‘queen of puddings, sticky toffee puddings, and knickerbocker glories’?37 In the light of these remarks, imagine that, fifty years from now, biobank research has yielded important findings about the causes of major diseases. Equipped with this understanding, the State is in a position to make effective interventions that will reduce the incidence of disease. What would the community make of the following kinds of public health measures that are proposed by the State? First, with a range of key genetic markers now identified, and with techniques such as PGD now wholly reliable and sophisticated, what if the State proposes that any embryos that carry a relevant marker should not be used? We should recall that such screening already takes place for markers associated with a predisposition to cancer; so why not also for markers associated with, say, obesity or addiction? Or, what if a similar approach is taken to pre-natal testing so that a foetus with the relevant marker is recommended for abortion, or even required to be aborted? On the face of it, there is quite a leap from securing the infrastructural conditions to determining who shall be admitted to enjoy the benefits of those conditions. Second, what if products (such as tobacco and alcohol) that are judged to be contrary to public health are prohibited? Or, again, what if certain lifestyles are treated in the same way? These do not seem to be infrastructural matters and, even if our public health intelligence is vastly improved, it does not follow that regulatory direction would comport with liberal values. Third, what if the physical environment is designed in ways that are not simply conducive to health but that actually present agents with no option other than the healthy one? What if the only way to get from A to B is to walk or to use the stairs? Is this really an essential infrastructural condition? In short, how far, in a liberal community, will it be accepted that the State as steward for public health can not only set the stage in the right (health-promoting) way but may also act as gatekeeper for who is admitted to the community and then as a monitor of individual lifestyles?38 37 ‘Whose Potbelly is it Anyway?’ public lecture, hosted by the Nuffield Council on Bioethics, delivered at the Royal Society, London, 26 April 2010. 38 Compare Thaler and Sunstein, ­Nudge.

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These are difficult questions. However, we should not despair. If a community with liberal values can (and should) debate questions concerning the regulation of activities (of acts, interactions, and transactions), so it can (and should) debate its best understanding of the distinction between infrastructure and activity – and, concomitantly, its understanding of the regulatory competence that follows from this distinction.39 In practice, just as the harm principle offers liberals a rule of thumb about the acceptable limits of coercion and criminalisation, so the distinction between the essential infrastructural conditions and action thereon might help with determining the limits of legitimate stewardship. Of course, whilst there is some comfort in these remarks, we should not be complacent: it is no use initiating such a debate in 50 years’ time; this is a debate that must start now.

Conclusion

Insofar as this chapter is focused on the legitimacy of using the criminal law for public health purposes, it says something that is perfectly familiar and something that is less familiar. What is familiar is the idea that liberals (harking back to Mill) will resist the criminalisation of conduct that is not clearly harmful to others; and that they will apply this standard (warts and all) to penal provisions that have public health purposes. What is less familiar is the claim that, in evaluating public health measures, we should start with a distinction between the conditions that are part of the essential infrastructure for human agents to function and acts or conditions that presuppose the integrity of that infrastructure. The significance of this distinction, I have claimed, is that regulators should be treated as having a broad competence to intervene in support of the essential infrastructural conditions; and that, in exercising this 39 Arguably, this is analogous to Martha Nussbaum’s recognition, in her discussion of the threshold conditions for human dignity – where decisions must be made about which capabilities are central and which demand special protection – that there will be clear cases (supported by a consensus) and cases that are unclear. In relation to the latter, Nussbaum says that a ‘debate must take place, and each must make arguments attempting to show that a given liberty is implicated in the idea of human dignity’: see, Nussbaum, Creating Capabilities, at 32. Nussbaum then lists ten capabilities, a threshold level of each of which must be secured as a necessary condition of any decent political order (at 33–34). The ten capabilities are: life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; [concern for] other species; play; and control over one’s environment. While the capabilities at the top of the list must be within the essential infrastructural set, it is less clearly so as we move down the list. In the event that it were agreed that all the capabilities listed were within the essential infrastructure, it would remain to determine the applicable threshold level of each capability.

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competence, they may legitimately use the criminal law or other regulatory tools in ways that, relative to liberal lights, would not otherwise be justifiable. However, this account of the familiar and less familiar is presented against the backcloth of a regulatory environment that stretches way beyond the criminal law. Indeed, much of the chapter is dedicated to arguing that it is a mistake, for liberals and others, to focus only on the criminal law. Regulators can pursue prima facie illiberal public health purposes in many ways and, in particular, they can do so by designing into the environment their public health purposes. Where they do so with prior public authorisation and endorsement, this might satisfy liberals; and where they do so in order to protect the essential infrastructural conditions, they can appeal to the stewardship jurisdiction to justify their interventions. Where, though, regulators so act without either of these justifications, liberals should protest twice – once for the paternalism and then for the lack of transparency. Futurology is a dangerous game. However, if public health becomes a more pressing policy concern, and if smart regulators seek effective interventions in ways that rely less on the criminal law, then liberals will need to adjust both their priorities and their focus. In future, the first priority is to preserve and promote the essential infrastructural conditions; and, with those conditions secured, the focus needs to be, not only on the criminal law’s normative signals, but also on the nonnormative regulatory fixes that, rather than prescribe, signal only what is possible.40 40 In the chapter, there were some passing references to issues that might arise from the operation of UK Biobank. Let me emphasise that I am writing purely in my personal capacity and in no sense in my capacity as Chair of the Ethics and Governance Council for UK Biobank.

3

Drugs, crime and public health: a lesson from criminology Douglas N. Husak



Drug criminalization and public health

Respondents in the United States report increasing dissatisfaction with the country’s primary reliance on our criminal justice system to combat the myriad problems caused by the use of illicit drugs. Opinion surveys indicate that a majority now regard illicit drug use mainly as a public health issue, and support for decriminalizing the use of some or all illicit drugs is at an all-time high.1 Opposition to our existing approach appears to be based on grounds of both principle and policy. As a matter of principle, hysteria about the dangers of drugs seems to have abated. The percentage of living citizens who have used an illicit drug at some point in their lives continues to rise. Personal experience confirms that illicit drug use per se is not sufficiently risky to merit the extreme punishments dispensed by law.2 As a matter of policy, greater numbers of individuals regard our present approach as both ineffective and counterproductive. At home, drugs are easier to obtain than when the so-called war on drugs was launched. Internationally, efforts to curb supply have caused devastating consequences around the world.3 As state governments become starved for resources and painful cuts must be made, taxpayers question whether they are reaping a reasonable return for their ongoing investment in our punitive drug policy. Of course, dissenting voices can be heard. Contrarians sometimes allege that we have not relied on the criminal justice system to deal with illicit drug use nearly as much as reformers lead us to believe. They insist that it is a myth to suppose that our jails and prisons are filled with drug Thanks to A. M. Viens, John Coggon, Anthony Kessel, and to members of the ­audience at the Center for Bioethics, New York University. 1 For example, see Frank Newport, ‘Record-High 50% of Americans Favor Legalizing Marijuana Use’, Gallup Polls (17 October 2011) www.gallup.com/poll/150149/recordhigh-americans-favor-legalizing-marijuana.aspx. 2 Generally, see Paul H. Robinson, ‘Crime and Punishment in New Jersey: The Criminal Code and Public Opinion on Sentencing’, www.drugpolicy.org/njcrime (2011). 3 See ‘War on Drugs: Report of the Global Commission on Drug Policy’, (June, 2011), available at www.globalcommissionondrugs.org.

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users.4 Data to the contrary are said to be misleading exaggerations.5 The most frequently repeated allegation is that conviction for a possession offence does not entail that the defendant actually committed the mere crime of use. More typically, the defendant engaged in an additional offence – most commonly, sale or distribution – and bargained down from the more serious crime he or she actually perpetrated. Although it may be fruitless to fight this battle of statistics, I hazard four brief rejoinders to these contrarians. First, many persons are returned to prison for parole violations each year, and among the most common reason for revocation is the failure to pass a drug test. Thus drug offences do help to explain incarceration rates, even when defendants originally committed some other infraction. Second, a prior arrest for a drug offence can lead to a much more severe punishment when the user commits a subsequent, more serious crime. Officially, he or she is sentenced for the later crime, but the earlier drug offence accounts for a significant portion of the term in prison. Third, these contrarians rely on a distinction between use and sale, alleging the latter to be an offence more worthy of a prison sentence than the former. But a great many users sell or exchange drugs at some point in their lives, so the contrast is less salient than it might appear. Many of these users are not major distributors and are incarcerated because they were unwilling or unable to cooperate with authorities by implicating others higher in the chain of distribution. Finally, prison rates paint an imperfect picture of our heavy reliance on criminal justice in responding to drug use. A better indication is the extraordinary hassle from law enforcement to which users are subjected on a daily basis. Almost 2 million drugrelated arrests take place each year; the vast majority (80 per cent) are for possession, and 750,000 are for simple possession of marijuana.6 In New York City alone, more than 100 persons are arrested for a marijuana offence every day. Thus I will assume that conventional wisdom is accurate and that it is indeed true that our country relies heavily on the criminal justice system to combat illicit drug use. Can our punitive policies be defended as a matter of justice? I think not. In a series of books and articles, I have argued that we should decriminalize the use of illicit drugs.7 I reach this conclusion by applying 4 Drug Enforcement Agency, ‘Speaking Out Against Legalization’, (2010). At ­w ww. justice.gov/dea/pr/multimedia-library/publications/speaking-out.pdf. 5 US Department of Justice, Federal Bureau of Investigation Uniform Crime Reports: Crime in the United States (2010). 6 Ibid. 7 See Douglas Husak, Drugs and Rights (Cambridge University Press, 1992); Douglas Husak, Legalize This! (London, Verso, 2002); and Douglas Husak and Peter de Marneffe, The Legalization of Drugs (Cambridge University Press, 2005).

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general principles of criminalization – necessary conditions that must be satisfied if the enactment of a penal statute is to be justified.8 After all, we cannot support the conclusion that persons should not be punished for using drugs without some general views about what would count as a good reason to punish anyone for anything. Of course, the content of these principles of criminalization is highly controversial. But commentators from all points along the political spectrum tend to agree that western countries, and the United States in particular, are guilty of overcriminalization – of punishing a broader range of conduct than can be justified. If we are serious about reducing the size and scope of the penal sanction, drug offences are a sensible place to begin. It is easy to misunderstand how my general views about criminal law apply to drug policy; theorists have reached no consensus about the meaning of such terms as legalization or decriminalization.9 What I mean by proposals to decriminalize the use of a given drug is simple – deceptively so. I mean that the use of that drug would not be a criminal offence. I take it to be a conceptual truth that offences are criminal when they subject persons to state punishment. So anyone who thinks that the use of a given drug should be decriminalized believes that persons should not be punished merely for using it. Admittedly, this conclusion must be established drug-by-drug, and surely is more compelling for some drugs than for others. Still, I will ignore these important differences since I believe that the case in favour of punishing users of any existing drug fails to satisfy the normative criteria in our best theory of criminalization. If I am correct, my foregoing rejoinder to contrarians is beside the point; one punishment for use is too many. Admittedly, my thesis is wholly negative and leaves open the question: what should be done to illicit drug users? If punishments are ruled out, I assume we should be receptive to alternative ways to address the problems caused by illicit drugs. Later I will suggest that the criminal justice system should leave drug users alone. Admittedly, this position seems radical, and other options must be examined. What I call the liberal position is to treat illicit drug use as a public health problem. For the most part, commentators who adopt a public health approach to drug policy presuppose a framework of harm reduction. In this chapter I propose to comment on the liberal position as so construed. As an academic 8 See Douglas Husak, Overcriminalization (New York, Oxford University Press, 2008). 9 In case my definition does not seem easy to misunderstand, it is noteworthy that what I call decriminalization in the context of illicit drugs is nearly identical to what is typically described as prohibition in the history of alcohol policy.

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philosopher, however, I must proceed with caution. The great bulk of the literature on drugs and harm reduction has been produced by social scientists, and we philosophers tread on this turf at our peril. As we will see, many of the contested issues are empirical. Countless books have been written and conferences convened on the topic of drugs and public health, and philosophers tend to lack the expertise to analyze these issues with the requisite degree of sophistication. Elsewhere I have been critical of the tendency to apply a harm reduction perspective to all questions about drug policy.10 The cost–benefit, consequentialist framework of harm reduction is notoriously indifferent to rights and the deontological considerations I believe to lie at the heart of many normative questions about punishments for drug use.11 In addition, cost–benefit analyses tend to do a much better job quantifying the harms than the benefits of drug use.12 Once these benefits are identified, they are difficult to weigh against harms on a common scale to yield an overall balancing. Nonetheless, I have no quarrel with a harm reduction model in the present context. The issues I will discuss extend beyond decriminalization as I have defined it, which covers only use. A comprehensive policy should endeavour to describe how drug markets should be structured to preserve public health. As inherently public institutions, markets are more subject to evaluation by the cost–benefit, consequentialist framework I believe is incomplete when applied to questions about use itself. What exactly do liberals mean when they say that we should treat illicit drug use as a public health problem? They often mean, inter alia, that we should expand treatment for drug use. To many ears, pleas to expand the availability of treatment sound like an alternative to our punitive approach. But this proposal need not be understood to involve a retreat from our heavy reliance on criminal justice. Many liberals regard the continuation of punishment for drug use as instrumental in ensuring the effectiveness of treatment. That is, they favour the retention of penal sanctions in order to increase the likelihood that persons 10 See Douglas Husak ‘Competing rationales for drug policy reform’, in Jefferson Fish (ed.), Drugs and Society (Lanham, Md., Rowman & Littlefield, 2006), pp. 97–125. 11 Drug policy is dominated by a simple-minded utilitarianism that does not approach penal justice within a deontological framework. For example, recent commentators write ‘the plausibility of moving to a no-coercion drug policy depends on how much drug abuse current policies actually prevent’. Mark A. R. Kleiman, Jonathan P. Caulkins, and Angela Hawken, Drugs and Drug Policy: What Everyone Needs to Know (New York: Oxford University Press, 2011), p. 19. 12 Kleiman and his co-authors at least raise the question of whether the pleasure caused by drug use counts as a benefit, but do not pursue the matter and stop short of answering it. Ibid. p. 138.

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will comply with treatment regimes, since the success of just about any type of treatment depends on the willingness of persons to cooperate with it. The proliferation of drug courts over the past two decades may seem to provide a perfect illustration of how criminal penalties can exist comfortably alongside a treatment regime.13 Although persons enter drug court through the coercive avenue of arrest, the rhetoric of these courts is solidly therapeutic rather than punitive. Thus drug courts may seem to involve a key component of a liberal, public health approach to drug use. After an early wave of positive reviews, more recent evidence indicates that drug courts are much less effective than their advocates had hoped in providing a viable public health approach to drug use. Many explanations can be given for the failure of drug courts to achieve their lofty aspirations, but the root of the problem, I believe, is that these courts are rooted firmly within a framework of criminal prohibitions for drug use.14 This framework creates several tensions; two are significant for present purposes.15 First, severe drug problems are notoriously difficult to overcome; relapse among addicts is the rule rather than the exception. But total abstinence is the ideological objective to which nearly all courts subscribe. As a result, it is inevitable that a great many defendants fail to complete the treatment regime mandated and overseen by the drug court judge. Incarceration is the typical response to such failures. Often these persons are incarcerated for longer terms than would have been imposed had they accepted plea bargains and declined to enter drug court in the first place.16 Second, the existence of drug courts produces a ‘net-widening’ effect. More users are arrested and prosecuted because well-intentioned officials believe such persons will benefit from the treatment drug courts offer.17 As a result of these two factors, the total amount of traditional punishments inflicted on users has almost certainly increased since drug courts have proliferated.18 13 The best monograph is James L. Nolan Jr., Reinventing Justice: The American Drug Court Movement (Princeton University Press, 2001). 14 See Richard Boldt, ‘A circumspect look at problem-solving courts’, in Paul C. Higgins and Mitchell B. MacKinem (eds.), Problem-Solving Courts: Justice for the Twenty-First Century? (Santa Barbara, ABC-CLIO, 2009), pp. 13–32. 15 For additional tensions, see Douglas Husak, ‘Retributivism, proportionality, and the challenge of the drug court movement’, in Michael Tonry (ed.), Retributivism Has a Past. Has It a Future? (Oxford University Press, 2011), pp. 214–33. 16 Michael O’Hear, ‘Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice’, (2009) 20 Stanford Law and Policy Review 463. 17 Morris Hoffmann, ‘The Drug Court Scandal’, (2001) 78 North Carolina Law Review 1437. 18 See Drug Policy Alliance, Drug Courts are not the Answer: Toward a Health-Centered Approach to Drug Use (available at www.drugpolicy.org).

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Of course, individual drug users should be permitted to experiment with most any mode of treatment they believe will be beneficial. I am sceptical, however, that liberals should be quick to advocate coerced treatment as their preferred option for those who do not seek help voluntarily. I can only sketch my reservations here. First, as I have indicated, we must justify what is done to persons who fail to complete the treatment into which they are coerced. If punishments for use cannot be justified, they cannot be justified for use after individuals do not succeed in treatment. Second, despite enormous variation among providers, it is hard to be impressed by the drug treatment industry as a whole.19 Treatment is typically expensive, often ineffective in the long run, and frequently unnecessary. Coercion for paternalistic purposes is hard to justify under the best of circumstances; it is especially problematic when the benefit for the person coerced is unclear.20 Astonishingly, addicts who undergo treatment are more likely to continue using drugs than those who do not enter treatment.21 In many respects, the drug treatment industry resembles the weight loss industry. The enormous resources expended on these treatments rarely produce lasting positive results. At the very least, any long-term benefits are purchased at an extraordinary cost. The basic problem is that coerced treatment probably is incompatible with decriminalization as I construe it. Decriminalization precludes punishing drug users, and the question of whether coerced treatment is consistent with decriminalization depends on how one understands the concept of punishment. Unfortunately, this issue is also unsettled, and confusion abounds. Any web surfer can find maps of the (13 or 14) United States that list the several jurisdictions that have allegedly decriminalized marijuana possession, even though most of these states allow users to be ticketed

19 Admittedly, practical and ideological reasons often prevent health care professionals from implementing ideas that may actually work. For a nice discussion, see Nancy M. Petry, Sheila M. Alessi, and Carla J. Rush, ‘Contingency management treatments of drug and alcohol use disorders’, in Jeffrey Poland and George Graham (eds.), Addiction and Responsibility (Cambridge, Mass., MIT Press, 2011), pp. 225–45. 20 See Douglas Husak, ‘Penal paternalism’, in Christina Coons and Michael Weber (eds.), Paternalism: Theory and Practice (Cambridge University Press, 2012), pp. 39–55. 21 “Berkson’s Bias” provides a possible explanation of why addicts in treatment are less likely to stop using drugs, but the phenomenon continues to puzzle drug treatment researchers. According to one commentator, ‘the available evidence fails to support a pharmacological explanation of why addicts in treatment are less likely to quit using drugs … The most important [difference] is that addicts in treatment are much more likely to suffer from additional psychiatric disorders than those not in treatment.’ Gene M. Heyman, Addiction: A Disorder of Choice (Cambridge, Harvard University Press, 2009), p. 82.

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and fined (rather than incarcerated).22 Of course, whether such arrangements are compatible with what I mean by decriminalization depends on whether tickets and fines are modes of punishment rather than alternatives to punishment. Coerced treatment is vulnerable to the same uncertainty. I tend to think that both fines and coerced treatment are modes of punishment. Both intentionally impose stigmatizing deprivations, and thus satisfy what I regard as our best definition of punishment.23 Perhaps the states that ticket and fine marijuana possessors are thought to implement decriminalization because these sanctions are not designed to stigmatize. But it is hard to understand why these arrangements lack an intention to stigmatize. A fine for overtime parking, for example, may not stigmatize and be designed simply to ensure compliance with a fair scheme to allocate a scarce resource (viz., the parking space). But no comparable story can be told about why persons who possess marijuana should be fined at all. Even though these modes of punishment probably are preferable to the more severe sanctions we now inflict on drug users, they are likely to be ruled out by decriminalization as defined here. In drug courts, as elsewhere, punishments and therapy are nearly impossible to reconcile. I am sceptical that criminalizing use is compatible with an acceptable public health approach to illicit drugs.24 In what follows, I explore a possible basis for contesting my scepticism. That is, I consider a reason that would justify punishing drug users in the pursuit of public health.

Crime and public health: findings from New York City

With so many questions about the meaning of a public health approach to a given issue, it is sensible to ask why illicit drugs are believed to present a public health problem in the first place. This inquiry is crucial if we hope to defend a public health approach to drug policy and assess its compatibility with criminalization. Obviously, this question has many different answers.25 I propose to focus on only one such 22 See, for example, ­http://en.wikipedia.org/wiki/Places_that_have_decriminalized_ non-medical_cannabis_in_the_United_States. 23 See Husak, Overcriminalization, pp. 92–93. 24 The devastating health consequences of punishing illicit drug users are described in detail by Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York, New Press, 2011). 25 The most recent effort by the Office of National Drug Control Policy to estimate the consequences of illicit drug use on public health is US Department of Justice, ‘The Economic Impact of Illicit Drug Use on American Society’, (April 2011), at www.justice.gov/ndic/pubs44/44731/44731p.pdf; www.justice.gov/ndic/pubs44/44731/44731p. pdf. Recent monographs include Chris Allen, Crime, Drugs and Social Theory (Aldershot, Ashgate, 2007); Philip Bean, Drugs and Crime, 3rd edn (Cullompton,

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answer, with no pretence that it is the most important. According to the possibility I will explore, the use of illicit drugs poses a public health problem because it causes violence. Since nearly all violence amounts to a crime, the hypothesis I will discuss is that the use of illicit drugs presents a public health problem because it causes violent crime. Some economic crimes should be included in this analysis. Even when they are not violent per se, the perpetration of economic crimes such as burglary increases the risk of violence and thus poses a problem of public health. Social scientists have produced an enormous literature investigating the alleged drug–crime connection.26 The most influential contribution to this topic was made by Paul Goldstein, who described three distinct mechanisms by which illicit drugs might cause crime.27 Drugs may cause psychopharmacological crime, somehow altering behaviour and leading users to commit violent acts. Or drugs may cause economic crime, as users engage in shoplifting, theft, fraud, burglary, or robbery to obtain money to buy drugs. Finally, drugs may cause systemic crime, as illicit markets generate a number of violent activities. Of course, drugs may cause crime through more indirect paths not mentioned by Goldstein. For example, drugs may worsen academic performance or relax parental supervision of children, both factors that are linked to greater involvement in crime.28 In each of these categories, criminologists have debated whether drug use causes crime, whether crime causes drug use, or whether the relationship between the two has a common cause and is spurious.29 It may be presumptuous for a philosopher to attempt to add to this massive empirical literature. Despite my trepidation, I hope to identify the normative significance of some recent criminological findings. Willan Publishing, 2008); Richard Hammersley, Drugs and Crime (Cambridge, Polity Press, 2008); and Alex Stevens, Drugs, Crime and Public Health (London, RoutledgeCavendish, 2011). 26 ‘The relationship between drug use and criminal activity has been extensively studied by social scientists, indeed perhaps more so than any other topic in the field.’ Charles E. Faupel, Alan M. Horowitz, and Greg S. Weaver, The Sociology of American Drug Use, 2nd edn (New York, Oxford University Press, 2010), p. 349. 27 Paul J. Goldstein, ‘The Drugs Violence Network: A Tripartite Conceptual Framework’, (1985) 15 Journal of Drug Issues 493. 28 For a discussion of some of these complexities, see Mangai Natarajan (ed.), Drugs and Crime, 3 vols. (Aldershot, Ashgate, 2010), vol. II. 29 Arguably, philosophers could make a genuine contribution to this issue by clarifying the concept of causation. Commentary on the drug–crime connection relies overwhelmingly on a simplistic counterfactual analysis according to which drug use is thought to cause crime if the latter would not have occurred but for the former. These analyses have been subjected to attacks. See Michael S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (Oxford University Press, 2009), especially ch. 4.

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Although officials have not always been attentive to the distinctions drawn by Goldstein, most of those who have led the country through our drug war in the past generation have expressed few reservations about whether drugs are causally implicated in the notoriously high rates of violent crime throughout the United States. William Bennett, John DiIulio, and John Walters confidently proclaim that ‘if one wants to know immediate causes of much of America’s moral poverty … and its record crime rate, it is impossible to overlook drug use’.30 Alfonse D’Amato describes drug addicts as ‘walking crime machines’.31 Joseph Califano and William Bennett warn that a truce in the drug war would make drugs more available and ‘increase criminal activity’.32 The US Drug Enforcement Agency took notice of growing scepticism about the need for a punitive approach to drug use by including ‘ten facts on legalization’ on its website ‘Speaking Out: Against Drug Legalization’.33 Alleged ‘fact’ Number Seven is ‘Crime, violence and drug use go hand in hand’.34 Moreover, the Agency explicitly rejects economic and systemic accounts of the drug–crime nexus in favour of psychopharmacological explanations. ‘Most drug crimes aren’t committed by people trying to pay for drugs; they’re committed by people on drugs.’35 To be sure, a number of criminologists have long expressed reservations about the alleged drug–crime connection, even while supporting a punitive policy. James Q. Wilson, for example, contends ‘it is not clear that enforcing the laws against drug use would reduce crime. On the contrary, crime may be caused by such enforcement.’36 Still, many more public voices have trumpeted the war on drugs as instrumental to winning the war on crime. Indeed, prominent sociologists observe ‘perhaps the greatest fear that many people have of illegal drugs is the association that these substances have with other forms of criminal behavior’.37 An emphasis on the linkage between drugs and crime is eminently sensible for the normative purposes I pursue here. Punishments, as all philosophers agree, require a justification. How might we defend punishing persons for using illicit drugs? This practice cries out for a 30 William J. Bennett, John J. DiIulio, Jr., and John P. Walters, Moral Poverty … And How to Win America’s War Against Crime and Drugs (New York, Simon & Schuster, 1996), p. 137. 31 US Senate, Impact of Drugs on Crime (10 May 1984). 32 Joseph A. Califano and William J. Bennett, ‘Do We Really Want a “Needle Park” on American Soil?’, Wall Street Journal, 1 July 2011, A15. 33 Drug Enforcement Agency, ‘Speaking Out’. 34 Ibid.  35  Ibid. 36 James Q. Wilson, ‘Drugs and crime’, in Michael Tonry and James Q. Wilson (eds.), Drugs and Crime (Chicago, University of Chicago Press, 1990), pp. 521–46, at 522. 37 Faupel, Horowitz, and Weaver, The Sociology of American Drug Use, p. 336.

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rationale. Surprisingly, a detailed and informed case in favour of criminalizing the use of illicit drugs has never been made.38 In my judgement, the hypothesis that drugs cause violent crime constitutes the most promising of several possible justifications for imposing penal sanctions on drug users. Many of the alternative rationales that sometimes are heard – the supposition that drugs are unhealthy for the persons who use them, are deleterious to adolescents, or are just plain wrongful to consume – are more easily refuted.39 If drugs cause violent crime, however, the case in favour of prohibition seems relatively secure. After all, the state has legitimately enacted a number of anticipatory or inchoate offences. These offences prohibit conduct not because of the harms they cause, but because of the harms they unjustifiably risk. If drug use unjustifiably risks violent crime, its proscription might be warranted by a similar rationale.40 Thus the present enquiry about the drug–crime nexus as a public health issue is directly relevant to the issue of criminalization – an investigation into what might justify our current practice of punishing drug users. A strong causal link between drugs and crime might make punishment of use compatible with a public health approach after all. Regardless of how to understand the precise mechanism that explains the link, the hypothesis that drugs are strongly implicated in violent crime seems plausible. This hypothesis is reinforced by data familiar to policy analysts. Studies consistently show both that drug users are much more involved in criminality than non-users, and that criminals are much more likely to use drugs than non-criminals.41 When the quantity of drugs consumed by heavy users is at its peak, rates of criminality among these users are greater as well. Estimates of the amount of property crime perpetrated by drug users range as high as 80 per cent. In addition, interviews and blood tests of inmates typically reveal that more than half used an illicit drug in the month prior to the offence for which they are incarcerated, and nearly a third were under the influence of drugs at the time of their offence.42 Finally, broad statistical trends help to confirm the connection between drugs and crime. Rates

38 In fact, the topic gets surprisingly little attention. The most eloquent political ­philosophers of our generation who have earned a reputation for opposing injustice have been silent about whether drug criminalization is justified. I have in mind John Rawls, Ronald Dworkin, Joseph Raz, and Amartya Sen – to name a few. 39 See Husak, Legalize. 40 See Husak, Overcriminalization, pp. 159–77. 41 See the several sources in footnote 25. The contested issue is why, not whether, these correlations exist. 42 See Faupel, Horowitz, and Weaver, The Sociology of American Drug Use, p. 350.

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of violent crime in the United States began to soar around 1985; this increase coincided with a spike in the sale and consumption of crack cocaine – which the Office of National Drug Control Policy describes as ‘the most dangerous and quickly addictive drug known to man’.43 Nonetheless, researchers have expressed doubts about the supposed drug–crime connection. One problem is the difficulty of specifying the mechanism that allegedly links drugs and violence. In particular, psychopharmacological explanations have proved stubbornly resistant to confirmation. Do drugs lead users to act violently because they compromise rationality or because they impair volition? Both options have been contested. Significantly, the effects of drugs in triggering violent behaviour differ enormously from one individual to another in the same culture. In addition, the contribution of drugs to violence varies radically across cultures and appears to be learned.44 Here, as elsewhere, it is difficult to disentangle whether the behavioural effects of substances are a function of their intrinsic chemical properties or of other factors – most notably, cultural attitudes and legal regulations. This difficulty is compounded by the fact that drugs are bought and sold in illegal markets, where both buyers and sellers may be ignorant of the purity or quality of the substances they exchange. Drugs may seem to be implicated in crime in particular incidents that attract enormous publicity. Consider, for example, the four homicides committed in a botched theft of a pharmacy by an alleged drug addict, aptly described as ‘the most cold-blooded robbery-murder in Suffolk County history’.45 Even in these horrific examples, we lack a clear idea of whether the murders were caused by the substances themselves or whether comparable acts of violence would have occurred in a regime of decriminalization. In any event, the issue is not whether drug use ever causes crime, but whether drug use itself creates a substantial risk of violence. Reasonable minds differ about the point at which given risks become substantial and thereby qualify for penal proscriptions. But no handful of incidents, however awful, can establish the case for criminalization. When robbers kill in attempts to steal drugs, it may be sufficient to punish them solely for the murders they commit.

43 ONDCP (1989), p. ­3. 44 See Muriel Vogel-Sprott and Mark T. Fillmore, ‘Learning, expectancy, and behavioral control implications for drug abuse’, in Todd R. Schachtman and Steve Reilly (eds.), Associative Learning and Conditioning Theory (Oxford University Press, 2011), pp. 213–34. 45 Michael Amon et al., ‘Official: Laffer a “cold-blooded killer”’, Newsday, 23 June 2011, www.newsday.com/news/breaking/official-laffer-a-cold-blooded-killer-1.2978573.

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How might we test the hypothesis that illicit drugs pose a public health problem because of their causal contribution to violent crime? No experiment that could actually be performed would be decisive. Still, some data that can be gathered in the real world would be suggestive. We might examine correlations between crime rates and drug use at different times in the same place, or in different places at the same time. In what follows, I discuss the former kind of test. If the hypothesis under investigation were true, we would expect ceteris paribus that an increase in the use of drugs in a given place would lead to an increase in rates of violent crime, and a decrease in the use of drugs in a given place would lead to a decrease in rates of violent crime. If rates of violent crime dropped dramatically while drug use remained relatively constant, scepticism about the drug–crime connection would be warranted. As I will indicate, this combination of facts is exactly what has occurred in New York City in the past 20 years. Crime rates have plummeted throughout the largest city in the United States while the incidence of illicit drug use has remained stable. In describing the data, I will draw heavily from a recent study by Frank Zimring that explores the spectacular crime drop in New York City during the past two decades and the role that drugs played (or did not play) in causing it.46 New York City provides an ideal laboratory to examine the relation between drugs and crime. Although violent crime has dropped in nearly every city in the United States in the past generation, its decrease in New York has been especially precipitous. Even though crime rates have flattened or even inched up elsewhere in the United States in the past few years, they continue to fall in New York.47 Zimring himself characterizes the New York crime drop as ‘astounding’.48 As he summarizes his findings, the magnitude of crime declines from peak rates ranges from 63% to 94% with four of the seven “index” felonies showing a rate drop greater than 80%, and five of the seven over 75%. The most modest declines – theft and aggravated assault – drop by about two-thirds, while the rates of the other crimes decline to less than 20% of the city’s highest recent rates.

More detailed information, of course, is presented in his book. To be sure, doubts have been raised about the accuracy of his remarkable 46 Franklin E. Zimring, The City That Became Safe: New York’s Lessons for Urban Crime and Its Control (Oxford University Press, 2011). 47 Crime appears to have increased slightly in several of New York City’s precincts since Zimring’s data were collected, but the increase seems inconsequential unless it represents a trend. See Al Baker, ‘Where Crime Is Up Across the Board, More Police but Not Many Jitters’, New York Times, 23 August 2011, A17. 48 Zimring, The City That Became Safe, p. 4.

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data.49 Nonetheless, statistics from ­independent sources confirm the magnitude of the crime drop. In short, something exceptional is happening in New York that should repay close attention.50 It is worth noting that no respectable criminologist predicted crime rates would fall to anywhere near their present levels. Theories about the causes of violence favoured by social scientists from all points along the ideological spectrum suggested that crime could not possibly drop to its current lows. Some criminologists hold that demographics are the best predictors of crime rates. But the number of residents of New York aged 15 to 19  – the period of peak criminality  – rose by about 80,000 since 1990, from 470,000 to 551,000. Nearly all of this increase took place in the racial and ethnic groups most prone to criminal activity.51 Other criminologists embrace economic theories of crime. Yet fluctuations in poverty rates do not explain the data, and we remain mired in the greatest economic downturn since the Great Depression of the 1930s.52 Most importantly for present purposes, we have seen that many criminologists believe that drug consumption plays a crucial role in crime trends. Since few experts were willing to predict that the incidence of drug use would fall much below its nadir in 1992, rates of crime were expected to remain constant at best. The collective failure of these demographic, economic, and substance–abuse explanations of violent crime has inflicted a black eye on the profession of criminology. Zimring himself wonders why ‘there have been few attempts in either academic or policy discourse to conduct an extensive autopsy’ of the dire predictions of the early 1990s.53 He speculates that ‘the public and the political actors involved with policy are much more concerned with what has caused a crime decline than with any negative lessons’.54 Although I am sure he is correct, it is crucial to learn that simplistic 49 Commentators sometimes complain that the numbers are inflated. But many of their allegations stem from frustrated New Yorkers who are disappointed by the fact that the police fail to record their reports of relatively minor crimes such as groping. See Al Baker and Joseph Goldstein, ‘Police Tactic: Keeping Crime Reports Off the Books’, New York Times, 30 December 2011. 50 Something less exceptional is happening elsewhere in the nation. Throughout the entire country, crime has dropped while drug use has not. But the data indicate a more consistent and precipitous decline in New York City. See Zimring, The City That Became Safe, pp. 15–17 and pp. 35–43. 51 Although the non-Hispanic Black population declined by 4.8 per cent, the Hispanic youth cohort aged 15–19 grew by 38 per cent. Ibid. p. 84. 52 In 1990 19.3 per cent of New York City residents were below the poverty line 21 per cent were below in 2000, and 21.2 per cent in 2010. See Sam Roberts, ‘As Effects of Recession Linger, Growth in City’s Poverty Rate Outpaces the Nation’s’, New York Times, 22 September 2011, A23. 53 Zimring, The City That Became Safe, p. 88. 54 Ibid.

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views about the drug–crime connection are undermined by empirical findings from New York City. These results are significant not only to understand the nature of a public health approach to drug policy but also to assess the normative issue of drug criminalization itself. The New York City crime drop is a monumental achievement that merits more publicity and for which many persons deserve praise. Criminologists continue to divide about the causes of this decline, and I have no profound thoughts to offer about this important topic.55 For present purposes, the most remarkable feature of this crime drop is that it has not been accompanied by a significant decrease in the incidence of illicit drug use. Reliable data on drug consumption is notoriously hard to obtain, but one preliminary point should generate agreement: the relevant datum to test a possible drug–crime connection is not the prevalence of illicit drug use per se. Overall figures on illicit drug trends are swamped by fluctuations in the consumption of marijuana, easily the most popular and widely available illicit substance. But no reasonable person believes that marijuana is directly implicated in violent crime.56 At best, its impact is indirect, that is, as a gateway to the use of other illicit drugs that are implicated in violent crime. Unquestionably the data involving the so-called ‘hard drugs’  – cocaine (in whatever form) and the opiates (especially heroin) – are more relevant for criminological purposes.57 New York City has long earned a reputation for housing cocaine and heroin users in far greater numbers than national averages. This fact was frequently cited to explain the high rates of violent crime throughout New York City in the 1980s, especially during the so-called crack epidemic. But how common are cocaine and heroin in New York City? Telephone surveys are the primary source of information about the use of these drugs. Although these surveys may be useful for revealing long-term patterns, they have obvious flaws and limitations. Several other sources of data must be consulted, and Zimring brings many to bear in his study. First, illicit drug overdose rates – caused almost exclusively by cocaine and opiates – indicate how frequently these drugs are 55 Everyone loves to speculate about this matter. See the various opinions expressed in Alfred Blumstein and Joel Wallman (eds.), The Crime Drop in America (New York, Cambridge University Press, 2000). 56 In the context of drugs, standards of what passes as reasonable vary radically over time. Harry Anslinger, US Representative to the United Nations Narcotics Commission, remarked in 1962 that ‘marijuana is the most violence-causing drug in the history of mankind’. Quoted in Martin Plant, Roy Robertson, Moira Plant, and Patrick Miller, Drug Nation: Patterns, Problems, Panics, and Policies (Oxford University Press, 2011), p. 129. 57 Curiously, New York City does not have high rates of methamphetamine use.

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used in given years. The overdose rates attributable to these drugs have been relatively flat since 1988.58 Second, cocaine and heroin are the drugs most often mentioned in visits to emergency rooms. Yet hospital records ‘are inconsistent with major long-term decreases over the full span of the crime decline’.59 Third, the street price of drugs is a useful gauge of demand. Throughout the period of the crime drop, the cost of these drugs peaked in 2000 but has been stable since falling to its low by 2003.60 Thus crime has plummeted even though drug use has not. Still, these figures bear close scrutiny. Perhaps crime has dropped enormously in the non-drug-using population but remains high among drug users. If so, crime would fall overall even though drugs cause crime; a higher and higher proportion of crime would be caused by drug users. Despite this possibility, crime seems to have declined in both groups. Police reports classify fewer and fewer crimes as drug related. Moreover, blood tests on arrestees show whether greater or fewer numbers of cocaine and heroin users are getting in trouble. The prevalence of one of these drugs in the body of arrestees has remained fairly constant over the 20-year period.61 Although each of the foregoing measures of the drug–crime connection is imperfect, we gain confidence in their accuracy when they coincide. In combination, they confirm the conclusion that the use of the most worrisome illicit drugs has remained relatively stable even while crime dropped precipitously throughout New York City. According to Zimring, ‘the contrast in measures of drug violence (way down) and cocaine and heroin use (very flat) shows a city where drug violence drops by more than 90% while drug use is relatively stable’.62 Of course, matters are not so simple. Despite its record-setting proportions, crime might have declined still further had illicit drug use been curbed. Or some other variable(s) might explain why rates of violent crime have dropped dramatically even though the incidence of illicit drug use has remained constant. If some other factor accounts for the data, however, we would need a competing explanation of the surprising results. Among the many possible explanations, two must be rejected at the outset. First, New York has not managed to solve its crime problem by incarcerating large numbers of persons – drug users or otherwise – who would be likely to perpetrate future offences. Even 58 Zimring, The City That Became Safe, p. ­90. 59 Ibid. p. 95. 60 Ibid. pp. 95–6. Obviously, price is also affected by supply. 61 Ibid. p. 97.  62  Ibid. p. 92.

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though the incarceration rate increased nationally among youth since 1990, New York stands as a striking exception to this generalization. Not only is its overall prison population lower than in 1990, but New York City is now locking up a smaller fraction of its adolescents and young adults in 2010 than in the early and mid 1990s.63 Second, one pillar of what I have called the liberal approach to drug policy should not be given much credence in explaining the statistics. No evidence indicates that significantly greater numbers of persons have received treatment, or that those who have received treatment have succeeded in remaining abstinent, than in earlier times. Residents are managing to commit fewer crimes than in previous decades, but drug treatment providers should not take much credit for this achievement. What has changed in the nexus between drugs and violence during the spectacular crime drop of the past twenty years? No one factor can tell the whole story. But a major difference in this period is the manner in which drugs are bought and sold. Markets – in the sense of a public place where persons go to buy a commodity – have been disrupted by intense police activity.64 Unlike the era in which markets would simply shift from one block or neighbourhood to another, fewer drugs are exchanged in locations known to buyers and sellers – and, therefore, to police. Technology has altered drug markets radically. Cell phones are the most prevalent but not the only recent innovation in drug transactions. A cover story of The Village Voice in 2011, for example, described the active buying and selling of heroin on the Internet by using the craigslist website.65 In any event, the noticeable erosion of open drug markets should not be confused with a decrease in drug consumption overall. Zimring observes ‘the New York experience may be an outstanding example of successful influence by the police on patterns of drug trade without any much greater suppression of the drug traffic and use’.66 Although many details remain unclear, it seems that the nature of illicit drug markets, and not use itself, plays a more central role in explaining the drug–crime connection. Zimring concludes ‘the city may be winning its war on crime (and on drug violence) without winning the war on drug abuse’.67

63 Ibid. p. ­88. 64 In particular, Operation Pressure Point in Manhattan utilized 1,000 police officers for six months and made 17,000 felony arrests. 65 ‘Heroin.com: Selling Junk Online’, The Village Voice, 20 April 2011. 66 Zimring, The City That Became Safe, p. 99. 67 Ibid. p. 99.

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Again, caution must be urged. But if the issue with which we are concerned involves rationales for criminalization, it is important to be reminded that the burden of proof in making a case for punishment rests on the state.68 The above results cast enough doubt on the ­drug–crime nexus that we no longer should be confident that penal laws are justified against drug use for the purpose of preventing violent crime and preserving public health.

What should the state do to illicit drug users?

Suppose I am correct that illicit drug use need not create a serious public health problem because of its causal connection to violence generally or to violent crime in particular. Suppose further that this finding undermines the most credible argument for criminalizing the use of illicit drugs. Still, this conclusion remains wholly negative; it does not tell us what the state should do to illicit drug users. My own preference is simple – again, deceptively so. What the state should do to drug users depends on the type of state action involved. I believe that the criminal justice system should leave such persons alone. Again, the claim that the criminal justice system should leave illicit drug users alone is easily misunderstood and becomes more plausible when clarified. Decriminalizing use per se does not preclude enacting specific laws that target times and places at which drug use creates elevated levels of risk to public health. Thus we mostly leave drinkers of alcohol alone, even though time and place restrictions are common and narrowly tailored offences (such as drunk-driving) are enforced. But further options are available; the state may adopt any number of devices to discourage drug use, as long as these devices are not punitive measures undertaken through criminal justice.69 For example, no one should object to state efforts to promote healthy lifestyles and to educate persons about the hazards of illicit drugs. Even more importantly, institutions other than the state can and do play a significant role in discouraging drug use. After decriminalization, some of these institutions might exert even more influence than today. Private businesses, schools, insurance companies, and universities, to cite just a few examples, might adopt policies that discriminate against drug users. Suppose that employers fired workers and schools penalized students who consume given drugs. I 68 See Husak, O ­ vercriminalization. 69 See the strategies discussed in W. A. Bogart, Permit But Discourage: Regulating Excessive Consumption (New York, Oxford University Press, 2011).

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do not endorse these ideas; many seem unwise and destined to backfire. Removing drug users from schools or the workplace, for example, seems destined to increase their consumption. I simply point out that these practices are compatible with decriminalization as I construe it and can be accepted by those who believe the criminal justice system should leave drug users alone. The claim that the criminal justice system should leave drug users alone should not be understood to imply that these persons do not pose significant social problems. Instead, the contention is that any coercive device the state might implement to combat these problems is likely to be ineffective, counterproductive, and/or unjust. This contention is not a priori or based on a libertarian ideology about the proper role of government.70 Any concrete proposal to employ a coercive state policy against drug use per se must be described in detail and evaluated on its own merits. For the following reason, I am sceptical that any such idea will be persuasive. Approximately 120 million living residents in the United States have consumed an illicit drug at some time in their lives. In light of the fact that their use has caused no significant social problems in the vast majority of cases, any given proposal aimed at this behaviour is bound to be overinclusive and to coerce particular individuals without justification. Consequentialists may be prepared to make these tradeoffs, but any theorist who thinks the policy toward drug users in the United States should be governed by deontological constraints is likely to resist them. Surely the most trenchant objection to my proposal is that coercive state efforts need to be retained in order to keep the incidence of drug use within acceptable limits. Without punitive state action, won’t rates of illicit drug use increase exponentially, with corresponding repercussions for public health? Some commentators deploy sophisticated models and hazard fairly specific predictions about how various policy changes would affect rates of consumption.71 To my mind, however, none of these predictions should be taken very seriously. Since I

70 The libertarian view(s) is/are presented in David Boaz (ed.), The Crisis in Drug Prohibition (Washington, Cato Institute, 1990). 71 See Beau Kilmer, Jonathan P. Caulkins, Rosalie Liccardo Pacula, Robert J. MacCoun, and Peter H. Reuter, ‘Altered States: Assessing How Marijuana Legalization in California Could Influence Marijuana Consumption and Public Budgets’, RAND Report Occasional Paper (2010), www.rand.org/pubs/occasional_papers/OP315.html. See also John J. Donohue III, Benjamin Ewing, and David Peloquin, ‘Rethinking America’s Illegal Drug Policy’, Working Paper 16776, National Bureau of Economic Research (February 2011).

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have explained my reservations about the accuracy of these forecasts elsewhere, I will not recount the basis of my scepticism here.72 But misgivings about the empirical basis for predictions do not get to the heart of the matter. As I have emphasized, normative issues about punishment for use should be governed by deontological constraints, not the utilitarian calculus of harm reduction. A criminal law is not justified simply because its absence would produce more disutility overall.73 Even on utilitarian grounds, the spectre of greater use is not a trump card that may be played against any proposed policy reform. As harm reduction theorists remind us, more drug use and more drug users need not translate into more drug-related harm. After all, no one should believe that illicit drug consumption is intrinsically bad; it is bad, if at all, only because of its instrumental contribution to other evils. If illicit drug use plays less of an instrumental role in causing other evils than conventional wisdom supposes, we should question why the prospect of greater amounts of such use is viewed as an unmitigated disaster which no sensible commentator should tolerate. Again, there are many possible harms drug use might cause; each allegation must be studied separately and carefully. Drug policy presents a huge puzzle that, like most puzzles, is best approached one piece at a time. But if Zimring is correct about the recent experience of New York City, one of the most serious evils to which drug use has been thought to lead – violence generally and violent crime in particular – does not justify punitive policies against illicit drug users and does not show that drugs create a serious public health problem. Admittedly, I have not commented on the countless alternative hypotheses about why illicit drugs might be regarded as a public health problem. Moreover, I have only scratched the surface in commenting on the supposed causal connection between drugs and crime generally and in New York City in particular. Nonetheless, the foregoing data presents a serious challenge for those commentators who cite the supposed drug– crime connection as their basis for believing that drug use creates a public health problem and should be punished. Zimring’s research describes a concrete example of a major city in which it is nearly indisputable that the problem (viz., violent criminal behaviour) has decreased while one of the alleged causes (hard drug use) has not. What is done about drug markets may be more important in reducing crime than what is

72 See Douglas Husak, ‘Predicting the Future: A Bad Reason to Criminalize Drug Use’, (2009) 1 Utah Law Review 105. 73 See Husak, O ­ vercriminalization.

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done about consumption itself. This conclusion fits comfortably within the decriminalization agenda as I have characterized it. Although many questions remain unanswered, the recent experience of New York City should make us sceptical that drug use is a public health problem because of its causal contribution to violent crime.

4

Criminal law, drugs and harm ­reduction Tom Walker

Harm reduction has, particularly since the late 1980s, been an increasingly important strand in drug policy.1 As the name suggests, harm reduction policies are not primarily aimed at reducing the use of drugs but at reducing the harm caused by drugs. Of course, the two aims are not completely independent. Eliminating the use of drugs would also reduce the harm caused by drugs. But the former is not required for the latter, and it is only policies (such as heroin-assisted therapy, needle and syringe exchanges, and drug consumption facilities) that aim to reduce the harm caused by drugs in ways other than by reducing consumption to which the label ‘harm reduction’ has been given. The introduction of policies of this type can come into conflict with the criminal law. Needle and syringe exchanges, for example, may come into conflict with drug paraphernalia laws that make it a criminal offence either to supply needles and syringes without a prescription, or to knowingly supply needles and syringes to those who intend to use them to consume illicit drugs. Drug consumption facilities usually supply clean needles and syringes and so may also come into tension with drug paraphernalia laws. But the potential sources of tension with the law go further. The law may, for example, make it a criminal offence to knowingly allow drugs to be used on one’s premises, and more generally drug users entering a drug consumption facility will be in possession of the drugs they intend to consume. As such, for a drug consumption facility to operate effectively some alteration to drug possession laws is likely to be needed. As the operation of harm reduction programmes may involve operators acting in ways prohibited by the criminal law, or may require changes to the law in order to enable them to operate effectively, decisions as to whether such changes should be made are required. In this chapter I want to examine the questions that are relevant when 1 David T. Courtwright, Forces of Habit: Drugs and the Making of the Modern World (London, Harvard University Press, 2001), ch.10.

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making this type of decision. The chapter is in two parts. In the first I will ­examine some of the conceptual issues about the ways in which harm reduction, public health, and the criminal law can, and should, be related. The second part considers the question of what needs to be considered in determining whether or not to change the law where it prevents a particular harm reduction programme from being introduced. Whilst I will be using examples of particular programmes in illustrating this argument, I do not intend this to be an argument for or against a particular change. In practice how the arguments work out will depend on the details of the criminal law, and local political objectives, in the country concerned.

Conceptualising the issues

Despite the resources put into cutting off the supply of drugs and the use of the law to penalise those who supply or are in possession of them, people still use drugs and drug markets still exist. In this context it might be thought that a different approach is needed. Rather than attempting to prevent the use of drugs, we should instead attempt to reduce the harm caused by them. Reducing harm, indeed, may seem unproblematic and not something to which anyone could object.2 Whilst there are other ways in which one might proceed, this approach can in practice lead to a focus on how to minimise the risks of harm to the person who uses drugs. This appears to be the approach advocated by Michael Sidibé when in 2010 he said, ‘We must focus our efforts on stopping this chain of transmission [of HIV/AIDS via sexual transmission and sharing contaminated injection equipment]. Above all, that means making it safer for those who are [sic] use drugs. This is harm reduction …’3 This way of characterising harm reduction has created concerns that it is a ‘Trojan horse’ for the legalisation of drugs.4 Indeed, if this is what harm reduction is, these concerns are not unreasonable. 2 Ethan A. Nadelmann, ‘Progressive legalizers, progressive prohibitionists and the reduction of drug related harm’, in Nick Heather, Alex Wodak, Ethan A. Nadelmann, and Pat O’Hare (eds.), Psychoactive Drugs and Harm Reduction: From Harm to Science (London, Whurr Publishers, 1993), pp. 34–45. 3 Michael Sidibé, ‘Pragmatism vs. Punishment: The Case for Harm Reduction’, speech given at the 53rd session of the Commission on Narcotic Drugs, (2010), text available at: http://data.unaids.org/pub/SpeechEXD/2010/20100310_SP_ CNDcaseforharmreduction_en.pdf 4 Neil McKeganey, Controversies in Drugs Policy and Practice (Basingstoke, Palgrave Macmillan, 2011), ch. 2, and Joseph Rowntree Foundation, The Report of the Independent Working Group on Drug Consumption Rooms, Joseph Rowntree Foundation (2006).

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The problem here is that if the aim of harm reduction is characterised in this way then it seems to be inimical to the use of the criminal law to prohibit both the sale and possession of drugs (as is currently the case in most jurisdictions). There are two reasons for this. The first is that one source of harm drug users face is that drugs are frequently cut with other substances and are of unknown purity. One could reduce this risk if supply was legalised. More significantly, many of the harms faced by those who use drugs unlawfully stem from that illegality – for example, from harms of arrest and punishment. It may even be that these are the biggest source of harm to drug users.5 As such, if our concern is to minimise the risk of harm to those who use drugs, then decriminalisation of possession, at a minimum, would seem to be required. Advocates of harm reduction are aware of this. In its 2010 report, for instance, the International Harm Reduction Association reported on moves towards decriminalisation of drugs in some Latin American countries as a positive step.6 On this way of characterising harm reduction, therefore, the relationship between the existing criminal law and harm reduction is one of opposition. The aim of harm reduction as an approach is to minimise the risk of harm to those who use drugs, but laws that make it a criminal offence to possess or supply drugs in practice increase those risks. As Moskalewicz et al. note, ‘[t]here is an intrinsic contradiction between drug prohibition and harm reduction’.7 It is perhaps because of this that those who favour minimising drug use can be opponents of harm reduction programmes in general.8 If they characterise harm reduction in the way outlined here, to accept harm reduction measures would be to buy into a programme that rejects their basic premise of what the aim of the country’s drug strategy should be. In the face of this opposition there are two ways in which one might proceed. The first is to accept that we ought to take steps that will minimise harm, and to argue that the criminal law ought to serve this end (or perhaps more minimally that the law in relation to drugs ought to serve this end). For any proposed harm reduction policy the key 5 Jonathan Wolff, ‘Harm and Hypocrisy: Have we Got it Wrong on Drugs?’, (2007) 14 Public Policy Research 126. 6 International Harm Reduction Association, Global State of Harm Reduction 2010: Key Issues for Broadening the Response (London, International Harm Reduction Association, 2010). 7 Jacek Moskalewicz, Damon Barrett, Michal Bujalski, Katarzyna Dabrowski, Harald Klingemann, Artur Malcewski, and Marta Struzik, ‘Harm Reduction Coming of Age: A Summary of the 18th International Conference on the Reduction of Drug Related Harm – Warsaw, Poland: 13–17 May 2007’, (2007) 18 International Journal of Drug Policy, 503–8, at 507. 8 See, e.g., Kathy Gyngell, The Phoney War on Drugs (Centre for Policy Studies, 2009).

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­ uestion will then be whether or not its introduction would reduce q harm. If it would, and the law currently gets in the way of introducing it (thereby leading to more harm than would otherwise be the case), then the law ought to be changed. How the balance of harms works out in any particular case will depend on the details of the policy. Whether or not the criminal law should be part of a system that aims to minimise harm, the idea that this should be the sole aim of drug laws is not universally held. As such to argue for a particular harm reduction policy on this approach requires two steps. The first is to argue that the policy will, or is likely to, lead to an overall reduction in harm. The second is to argue that the law (or at least the drug laws) should aim to minimise the harm caused by the use of drugs – one cannot simply assume this in a context in which people disagree about it. That is, this approach requires that we establish a particular position on what the aim of the drug laws should be. The alternative way in which we might proceed in the face of the opposition outlined above seeks to avoid having to establish any particular position on what the aim of the drug laws should be as part of an argument for a particular harm reduction policy. It is this approach that I want to explore here. There are, I think, advantages in seeing whether we can get agreement about specific policies to reduce harm even where we disagree about underlying questions such as what the aim of the law should be. In practice in what follows I will for the most part take it that the aim of drug laws is not solely to minimise the harm caused by drug use. As we will see, arguing for a change in the law to allow a particular harm reduction policy requires in part that one argues that the policy will (or is likely to) lead to a net reduction in harm. As noted above, this is also needed if one is to argue for a change in the law starting from the position that the drug laws should aim to minimise harm. As such, if one can argue for a change in the law to allow for a particular harm reduction policy on the assumption that the aim of the drug laws is not solely to minimise the harm caused by drug use, then the same argument will also include all that is needed to argue for that change if it is assumed that this is the aim of the drug laws. In order to explore the implications of this approach, in the rest of this section I want to consider whether there are ways in which we can conceptualise the relationships between harm reduction policies, drug laws and public health that do not assume that the aim of all three is solely to minimise harms caused by drugs. In doing this it will be necessary to introduce ways of conceptualising the relationships concerned that characterise the public health issues in ways that may not be in accord with those adopted by some public health practitioners.

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Harm reduction as a means to deal with the problem of infectious disease

Needle and syringe exchange programmes were first introduced in countries such as the UK as a way to tackle the public health problem posed by the spread of an infectious disease – HIV/AIDS.9 What is now characterised as a harm reduction policy can therefore be seen as a means to achieve a public health aim. Because HIV/AIDS is not spread solely through the sharing of needles and syringes by injecting drug users it is not of course the sole means to achieve that aim. But where shared needles and syringes are an important part of the story, tackling that behaviour will be an important part of the overall strategy.10 Characterising ‘harm reduction’ programmes in this way does not require advocates of harm reduction to take any particular position on what the aims of drug laws should be. In theory, those who think the aim of drug laws should be to minimise or eliminate the use of drugs could support the aim of tackling the spread of HIV/AIDS. Similarly, in theory those with the aim of tackling that public health problem could support the aim of attempting to eliminate drug use – though, of course, in practice they need not. Indeed, if the injection of drugs could be eliminated by the use of the criminal law, this would assist with the aim of tackling the spread of HIV/AIDS. Because of this the relationship between harm reduction when characterised (as here) as a way to achieve a specific public health end and the criminal law need not be straightforwardly oppositional in the way described above – even where it is held that the aim of the drug laws is not to minimise harm. In this situation it is not necessary to determine what the aim of drug policy should be in order to decide whether or not the drug laws should be altered to allow a particular harm reduction programme to be implemented. One can instead proceed by addressing a different set of questions. The first of these is simply whether there are good grounds for thinking that the proposed harm reduction policy is effective as a way of achieving the public health aim with which we are concerned. If it is not, then there is no reason to change the law on public health grounds. 9 G. V. Stimson, ‘AIDS and Injecting Drug Use in the United Kingdom, 1988–1993: The Policy Response and the Prevention of the Epidemic’, (1995) 41 Social Science and Medicine 699. Harm reduction policies are now advocated as a way to achieve other health objectives. I will return to this below. 10 World Health Organization, Policy Brief: Provision of Sterile Injecting Equipment to Reduce HIV Transmission (Geneva: World Health Organization, 2004); and World Health Organization, WHO, UNODC, UNAIDS Technical Guide for Countries to Set Targets for Universal Access to HIV Prevention, Treatment and Care for Injecting Drug Users (Geneva: World Health Organization, 2009).

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It is, second, also important to consider whether it is possible to avoid the conflict between the ends of minimising drug use and stopping the spread of infectious disease. In practice this means considering whether the proposed harm reduction measure is needed in order to achieve the public health aim. Finally, if this conflict cannot be avoided, a judgement as to which of the two aims is most important needs to be made. Many calls for an increase in harm reduction programmes do not consider this final point at all – it is not, for example, mentioned in the 2010 report of the International Harm Reduction Association.11 This may be either because it is thought that this question has already been settled or because advocates of harm reduction policies have moved to a different way of conceptualising the relationships between harm reduction, public health, and the criminal law. It is to this alternative that I now want to turn.

Drugs as a public health problem12

On the approach we have just been looking at harm reduction policies such as needle and syringe exchanges are aimed at tackling the problem of HIV/AIDS. Injecting drug users, however, also face other risks to their health as a result of their drug use – including Hepatitis B and C, drug overdose, and infections of injection sites.13 Because focusing on only one of these can seem problematic, an alternative would be to conceptualise drugs themselves as a public health problem. If this is done then programmes like needle and syringe exchanges would need to be seen, not solely as a means to deal with the problem of HIV/AIDS, but as a means to deal with health problems caused by the use of drugs more generally. Whilst this may not be the way in which all public health practitioners conceptualise the issues, exploring the implications of doing so is necessary if we are to make progress towards addressing the aims of this chapter (given the approach outlined above). Suppose then that this shift, from seeing harm reduction programmes as a way of addressing the public health problem of HIV/AIDS to seeing them as a way of addressing the public health problem of drug use, is made. Whilst at first sight this may seem to make very little difference, 11 International Harm Reduction Association, Global State of Harm Reduction ­2010. 12 The phrase ‘drugs as a public health problem’ here is meant to pick out the idea that the ways that drugs are currently used and consumed creates a public health problem. 13 Thomas Babor, Jonathan Caulkins, Griffith Edwards, Benedikt Fischer, David Foxcroft, Keith Humphries, Isidore Obot, Jürgen Rehm, Peter Reuter, Robin Room, Ingeborg Rossow, and John Strang, Drug Policy and the Public Good (Oxford University Press, 2010), pp. 47–61.

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in fact making this shift requires us to make a fundamental change in the way the relationships between harm reduction, public health, and the criminal law are conceptualised. When harm reduction is seen as a way to deal with a public health problem like HIV/AIDS the fact that public health policy comes into tension with the existing drug laws is a contingent issue that one could ideally seek to avoid. Once drugs are seen as a public health issue, however, this is no longer the case. This is because drugs are now being conceived of as being two things: a public issue and a criminal justice issue. As it is possible that these two ways of thinking about drugs could lead to very different approaches to dealing with them, the question of how they are related needs to be addressed. One way of answering this question is to argue that drugs should be thought of as a public health problem rather than a criminal justice problem. Thinking of drugs in this way does not mean that there is no place for the criminal law in dealing with them. To the extent that the criminal law can reduce the harm to health caused by drugs, for example by reducing the number of users, then it is a useful means to achieve public health aims.14 However answering the question in this way requires that one accept a particular account of the relationship between what the laws ought to be on the one hand and public health on the other. This is that the laws are, or at least ought to be, a means to achieve the public health aims. On this way of conceptualising the issues both the law and harm reduction policies are thought of as means to the same end – minimising the problem of drugs conceptualised as a public health problem. As such, where a harm reduction policy would be effective in tackling the harms to health caused by drugs it should be introduced, and if the law gets in the way of that then it ought to be changed. This would appear to be the view of several organisations working on harm reduction. For example, the World Health Organization and the International Harm Reduction Association appear to take the view that where harm reduction policies work (in the sense of reducing harms to health), the law ought to be changed to facilitate this.15 What is effective in dealing with the harms to health is taken to be decisive in this type of argument, and this only makes sense if the relationships are as described here. However, there are significant problems facing this way of conceptualising the issues. What this approach relies on is a particular account of the role of the drug laws – that is, that their role is to minimise the harm 14 Whether it is appropriate to use the law for this purpose is a different question and one that I do not have space to go into here. 15 See World Health Organization, Policy Brief, and International Harm Reduction Association, Global State of Harm Reduction 2010.

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caused by drugs (or more specifically that it is to minimise the harms to health caused by drugs). As noted above, however, this is a contested position. It is perhaps uncontroversial that drug use can harm health. But the position that I have been outlining here requires much more than this. It requires us to think that the only problem with drugs is that they can harm health, or perhaps that the only problem with drugs that the criminal law should be concerned with is that they can harm health. It would however be implausible to hold that this is the only problem that drugs have been thought to create, or the only reason that people have had for arguing that drug laws should be in place. Those considering arguments about the regulation of drugs have, for example, raised concerns that the use of drugs undermines a person’s welfare by undermining their autonomy or dignity.16 In addition there are concerns that the use of drugs poses a risk to the families of drug users, and that the use of drugs such as heroin interferes with users’ ability to contribute to society.17 Those who raise these concerns do not claim that all drug use has these effects since it is not that all drug users fail to contribute to society, or fail to adequately care for their children because of their drug use. But they do argue that the use of drugs such as heroin and cocaine creates these types of problem, and it does not seem plausible to deny that in practice this is sometimes the case. Furthermore, those who are concerned about these problems may well consider the law to be a suitable instrument to tackle them. Indeed, this would appear to be the view behind at least some current laws and international conventions on drugs. The United Nations, for example, takes the problem posed by the demand for and traffic in controlled narcotic substances to be that they, ‘pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society’.18 It is not my aim here to argue that the law as it stands in any particular country is the best way of addressing the kinds of problems listed here. It is simply to point out that whilst the idea that drugs are purely a public health problem takes it that the only problem with drug use is that it causes harm to health, and that as such the role of the drug laws should be to minimise this harm, that is not the position held by all those involved in the debate about drug laws – either because they hold 16 Wolff, ‘Harm and H ­ ypocrisy’. 17 George Sher, ‘On the Decriminalization of Drugs’, (2003) 22 Criminal Justice Ethics 30; and Home Office, Drug Strategy 2010 Reducing Demand, Restricting Supply, Building Recovery: Supporting People to Live a Drug Free Life (Home Office, 2010). 18 United Nations, United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, Preamble.

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that other types of harm are caused by drugs or because they disagree that the sole purpose of drug laws is to minimise harm caused by drugs. As such, if one is to base an argument for a particular harm reduction policy on the account of drugs as a public health problem outlined here, one is making a particular assumption about the role of the drug laws. It may be possible to argue that this is the right account of their role, but this argument would need to be provided as part of the argument for the harm reduction policy. As noted earlier this is not the approach that I am taking here. My aim is to consider how one might argue for a harm reduction policy without having to argue that drug laws should solely aim to minimise the harm caused by drugs (or more narrowly the harms to health caused by drugs). Because of this the conceptualisation of drugs as a public health problem that we have been considering so far is not appropriate. It is important to note that this does not mean that one has to give up the idea that drugs are a public health problem. All that it requires is that one give up the idea that drugs are solely a public health problem. The drugs we are concerned with here undoubtedly harm health, and it may well be that one aim of the drug policy implemented in a country’s laws is to tackle those health harms. As such, it remains a pertinent question as to whether or not the drug laws as they stand in a particular jurisdiction work to assist or detract from efforts to tackle that problem. But that they detract from that aim is not now enough to show that the law should change. This is because the law as it stands may be effective in achieving the other aims that the country has in implementing and enforcing its drug laws. Once this is recognised the questions outlined at the end of the discussion of harm reduction as a way to tackle the spread of infectious disease above again become pertinent. The relationship between harm reduction, the criminal law, and public health is not the same as it was there. On that account harm reduction policies are a way to achieve a public health aim (tackling the spread of HIV/AIDS) and the drug laws are a way to achieve a different aim. Where the means to these two aims come into conflict decisions have to be made about how to deal with that. In contrast, on the ways of conceptualising those relationships that are our concern here harm reduction is a way to achieve a public health aim (to reduce the health harms caused by drugs) that may in practice also be one, but only one, of the aims of the drug laws. Despite this difference the questions that are relevant when deciding whether the law ought to be changed to allow for the introduction of a harm reduction policy are broadly the same. In both cases the aim of the harm reduction policy is to assist in addressing some larger public

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health problem. As such, the question of whether or not it is effective as a way of tackling that problem is pertinent – if it is not, then there is no reason to introduce it. But just as was the case there, this is not the only relevant question because there may well be good reasons not to change the law that stems from its other aims. As such, whether there are other ways of achieving our public health aims, and the relative importance of those aims, are again relevant considerations.

The key questions

I have argued that in a context where there is disagreement about the aims of the drug laws, if one is to avoid assuming that one account of those aims is correct then it is useful to conceptualise harm reduction either as a way to deal with the public health problem of HIV/AIDS or to deal with the public health problem of drugs (where this is the claim that drugs are in part a public health problem). On either of these approaches three main questions need to be addressed when deciding whether the criminal law ought to be changed in order to allow a harm reduction policy to be introduced: (1) How good are the grounds for thinking that it is likely to be effective, (2) Are there other ways to achieve the public health aim, and (3) Which objective is the most important? In this section I want to investigate these questions in a bit more detail. Whilst in doing so I will use examples of particular harm reduction policies to illustrate my points, this is not intended to be specifically an argument about those policies.

Question 1: how good are the grounds for thinking that it will be effective?

There is little point modifying the criminal law in order to allow the introduction of a harm reduction programme that is not effective. As such, when thinking about whether the law ought to be changed to allow the introduction of a harm reduction programme the first thing to be determined is whether there is good reason to think that it will be effective. To see what is needed to establish that a programme is effective it is worth looking briefly at the example of needle and syringe exchanges. Suppose our aim is to introduce needle and syringe exchanges as a way to tackle HIV/AIDS. In this case the programme is effective if it reduces the number of people with HIV/AIDS in the population. But just looking at the prevalence of HIV/AIDS in the population will not tell us if the programme is effective in this way because lots of other

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factors will also affect this. Because of this much of the research on the effectiveness of needle and syringe programmes has focused on their impact on the prevalence of HIV/AIDS among injecting drug users. The evidence shows that they are effective in reducing this.19 If our aim is to reduce the risk of harm to drug users, this is sufficient to show that the programme is effective. But, if our aim is to reduce the prevalence of HIV/AIDS in the population as a whole things are somewhat different. If the harm reduction programme increases the number of people exposed to the risk of harm it may not reduce harm at the population level, even if the programme is effective in reducing the risk each drug user is exposed to as a result of consuming drugs. In the absence of empirical evidence to the contrary the thought that this could occur is not an unreasonable worry. If programmes are introduced that reduce the chances of contracting HIV/AIDS (by providing clean needles) or of dying from a drug overdose (by providing drug consumption facilities), then injecting drugs becomes safer than it was (though it still involves some risk). Studies indicate that consumption of drugs is affected by the cost20 and so it is not unreasonable to think that making injecting drug use safer will lead to an increase in drug use. If this were to happen then although the risk to each drug user goes down, as long as it is not reduced to zero the numbers of people contracting HIV/AIDS from shared needles could go up. As such, in addition to evidence about the prevalence of HIV/AIDS among injecting drug users, in order to show that needle and syringe exchanges are effective in helping to tackle the problem of HIV/AIDS in the population as a whole evidence that they do not lead to increased drug use is also needed. Whilst doing this is not straightforward, on the basis of studies carried out so far it can be concluded that there is no evidence that needle and syringe exchanges do in fact increase injecting drug use.21 We can conclude from this that needle and syringe exchanges are effective as a way to help address the problem of HIV/AIDS. This case has been made many times, and I have only recapitulated the argument here to demonstrate the complexity involved.22 As indicated earlier, 19 See, for example, David R. Gibson, Neil M. Flynn, and Daniel Perales, ‘Effectiveness of Syringe Exchange Programs in Reducing HIV Risk Behavior and HIV Seroconversion Among Injecting Drug Users’, (2001) 15 AIDS 1329. 20 Michael Grossman, ‘Individual Behaviours and Substance Use: The Role of Price’, in Michael Grossman and Björn Lindgren (eds.), Substance Use: Individual Behaviour, Social Interactions, Markets and Politics (Oxford, Elsevier Ltd, 2005), p. 15–39. 21 For a review of the evidence see World Health Organization, Effectiveness of Sterile Needle and Syringe Programming in Reducing HIV/AIDS Among Injecting Drug Users (Geneva: World Health Organization, 2004), pp. 11–17. 22 World Health Organization, Effectiveness of Sterile Needle and Syringe Programming.

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those arguing for harm reduction programmes such as needle and syringe exchanges sometimes stop at this point. Showing that these are effective is treated as sufficient reason to change the law. As I have been stressing, however, this is only sufficient if the law is taken to be subservient to the public health aims of either combating HIV/AIDS or of reducing the harms caused by drugs. In most countries it is not. As such determining that a harm reduction programme is effective is not the end of the argument. If one does not want to argue that the law on drugs should be entirely determined by public health priorities, as I do not, then other questions are also important.

Question 2: are there other ways to achieve the public health ends?

If there were two equally effective means to achieve a particular public health goal we would have reason to implement one of them, but it would not matter on the grounds of effectiveness which one. In that situation if one method created a conflict with the existing laws and the other did not, there would be no reason to change the law because the public health aim could be achieved without doing so. Things will rarely, if ever, be as straightforward as this. But in practice there is frequently more than one way to tackle the harms to health caused by injecting drug use. It will be useful to look at an example to illustrate this. Drug overdose has been shown to be the main cause of death among those injecting heroin.23 As such, taking steps to reduce overdose deaths is an important part of reducing the harms caused by drugs. Because those using drug consumption facilities are not alone when injecting they are likely to be dealt with quickly if they have an overdose. Those responding may also (depending on the set-up) have access to, and be trained in the use of, opiate antagonists such as Naloxone that are known to reduce the risk of dying from an overdose. In these ways drug consumption facilities can significantly reduce the risk of overdose death to those who use them.24 However they are not the only way to reduce the risk of overdose death. This problem has also been 23 Jennifer L. Evans, Judith I. Tsui, Judith A. Hahn, Peter J. Davidson, Paula J. Lum, and Kimberley Page, ‘Mortality Among Young Injection Drug Users in San Francisco: A 10-year Follow-up of the UFO Study’, (2012) 175 American Journal of Epidemiology 302. 24 Charlie Lloyd and Neil Hunt, ‘Drug Consumption Rooms: An Overdue Extension to Harm Reduction Policy in the UK?’, (2007) 18 The International Journal of Drug Policy 5.

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addressed in two other ways.25 The first is to ensure that ambulances and paramedics are equipped with and trained in the use of Naloxone. This helps to ensure that when the emergency services are called to a drug overdose they are able to provide the most effective treatment quickly. The second is to provide Naloxone, along with appropriate training, to injecting drug users or their families. Neither of these two alternatives is without its problems. The effectiveness of the first is likely to be restricted unless there are protocols in place to ensure that laws on possession are not enforced when emergency services attend a drug overdose. The second raises concerns about whether providing Naloxone will increase drug use because injecting drugs is now safer.26 However, similar concerns as noted earlier are also raised about harm reduction policies such as drug consumption facilities. Furthermore, as is the case with drug consumption facilities, unless it is the case that all drug users consume their drugs in a way that ensures these measures are to hand it is unlikely that any of them will reduce overdose deaths to zero. My aim in outlining these alternatives is not to argue that there is no need for drug consumption facilities. It is rather to illustrate a point that needs to be considered when thinking about whether the drug laws should be altered to lift a barrier in the way of implementing a particular harm reduction policy. Where, as here, there is more than one way of tackling a particular public health problem it is not enough to show that a harm reduction policy is effective, consideration must also be given to the alternatives. In this particular case it might be argued that drug consumption facilities are more cost-effective than the other options because they can tackle several health problems at once  – having an impact on the transmission of blood-borne viruses, as well as numbers of drug overdose fatalities27  – or that they reach injection drug users that other measures do not. This is not the place to assess the strength or weakness of any of these arguments. That will depend on the details of the harm reduction policy and local facts about the ways drugs are used. But if one is arguing in a particular context for a change in the law to allow the operation of measures such as drug consumption facilities, then some such assessment is needed. Even when this has been done the case for a change in the law has not been made. One further step is needed and it is to this that I now want to turn. 25 For a review see Babor et  al., Drug Policy and the Public Good, (Oxford University Press, 2010), pp. 130–31. 26 McKeganey, Controversies in Drugs Policy and Practice. 27 See Joseph Rowntree Foundation, Report of the Independent Working Group, pp. 62–64.

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Question 3: what is the weightiest consideration?

The two questions I have been discussing so far have been concerned with the reasons there are for introducing a particular harm reduction measure. But if the law as it stands creates a barrier to the introduction of that measure and there are reasons for the law to be as it is which are not purely concerned with minimising harm, then some consideration of which of those sets of reasons has most weight is needed. In carrying out such assessments two things need to be considered: the reasons for making a change, and the reasons not to do so. The focus in this section so far has been on the former, and it is now time to consider the latter. It may be thought that in addressing the question of whether a particular harm reduction policy is effective we have already addressed this issue in a way that shows the reasons not to change the law are weak. As noted earlier it has been argued that the use of drugs such as heroin undermines personal autonomy, can lead to problems for children whose parents use drugs, and undermines drug users’ ability to contribute to the community. If these are the problems that the law is designed to address, we only have reason not to change the law if the proposed change would increase the numbers of drug users. And this, as we have seen, might not be the case. However, taking this to resolve the issue would be a mistake. There may well be reasons not to change the law that cannot be dealt with in this way and in relation to which the available empirical evidence is of little use. To begin with the reason not to change the law might be that allowing a particular type of harm reduction policy will allow activities that harm others where these are not simply due to an increase in the numbers of drug users or the amount of drugs consumed by individual users. For example, it might be thought that drug consumption facilities would increase public nuisance caused by drug users in the vicinity of the facility, and have a negative impact on the lives of those who live and work in the area. To the extent that the drug laws aim at preventing this type of harm, this may provide a reason not to alter them. There is some reason to think that this particular type of harm reduction ­policy does not have this affect.28 Indeed, one reason for introducing drug consumption facilities has been to reduce public nuisance caused by the congregation of drug users.29 Because of this, considerations of this 28 Hla-Hla Thein, Jo Kimber, Lisa Maher, Margaret MacDonald, and John M. Kaldor, ‘Public Opinion Towards Supervised Injecting Centres and the Sydney Medically Supervised Injecting Centre’, (2005) 16 The International Journal of Drug Policy 275. 29 Robert J. MacCoun and Peter Reuter, Drug War Heresies: Learning from Other Vices, Times and Places (Cambridge University Press, 2001); and Dagmar Hedrich, European Report on Drug Consumption Rooms (Lisbon, European Monitoring Centre for Drugs and Drug Addiction, 2004).

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type may, in practice and depending on the particular policy and context, count either in favour of or against a change in the law to allow for the introduction of a particular harm reduction policy. More importantly the reasons not to change the law to allow harm reduction policies to be introduced may be that this risks normalising the use of drugs such as heroin,30 or sends mixed messages about drugs. These concerns are likely, at least in part, to be driven by worries about the long-term impact of changes to the drug laws. One aspect of this is a concern that over the long term the mixed messages will lead to an increase in drug use. This is not the same as the worry addressed earlier that by making drugs safer more people would use them; rather, the concern here is that a context in which messages on drugs are weakened and drug use normalised will, over time, lead to an increase in consumption. As the Joseph Rowntree Foundation put it: ‘Should the state officially sanction DCRs [drug consumption rooms], the Government’s broader, and currently strong, opposition to Class A drugs could be eroded and this might have a knock-on effect on people’s propensity to use Class A drugs.’31 The other aspect of this overall concern with normalisation and weakening the anti-drug message is that over time it may lead to decriminalisation or legalisation of drugs such as heroin. This is to reintroduce the concern that harm reduction is a Trojan horse for legalisation that we considered in part one above. We start by allowing needle and syringe exchanges, we then move on to allowing drug consumption facilities, and then perhaps to allowing the testing or even supply of drugs for use in the drug consumption room. At that point there is de facto legalisation of heroin. Those who are not opposed to legalisation will not be concerned about the possibility that we are heading that way step by step. But those who are opposed to legalisation, and I have been assuming that the context we are operating is one in which this is a widely held view, may reasonably view such a process with concern. All of the reasons I have outlined here can be challenged. Similarly the idea that these alone or in combination give sufficient reason not to change the law to allow harm reduction policies that provide benefits to the public health is open to question. How these things work out will depend on the details of the particular case. What is important for my purposes here is that they do not all rely on the idea that changing the law will lead to an increase in drug use in the short term. Hence simply arguing that the evidence shows that this will not happen 30 McKeganey, Controversies in Drugs Policy and Practice. 31 Joseph Rowntree Foundation, Report of the Independent Working Group, p. 81.

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is not sufficient to show that the law ought to be changed to allow harm reduction measures to be introduced. In this section I have now considered three broad types of question that need to be addressed when considering whether or not the law should change to accommodate particular harm reduction policies. The basis for thinking that these are the relevant questions is that we conceptualise the problem we face as one in which harm reduction policies are aimed at a public health end, and in which the drug laws are not (or at least not entirely) aimed at that same end. In doing this we have seen that when introducing such policies requires a change in the law it is not enough simply to argue that the harm reduction policy reduces harm. This is not a debate that can reasonably be characterised as one in which the advocates of harm reduction take the evidence seriously and those who oppose it do not. This characterisation would be appropriate if the aim of the drug laws was solely to protect public health or to reduce the risk of harm to users. But as I argued in the previous section this view depends on a particular conception of the aims of the drug laws that cannot simply be assumed. Because of this the advocate of harm reduction programmes needs either to show that the aim of the drug laws should solely be to minimise harm caused by drugs, or to show that the reasons in favour of a change in the law outweigh those against. These are not simply questions that can be answered by the empirical evidence, they require consideration of what evidence is relevant and unavoidably a value judgement about what is most important.

Conclusion

In most, if not all, places drug policy and the associated drug laws are not solely concerned with either reducing the risk of harm to the drug user or with protecting the public health. Because of this it is likely that potentially significant parts of both the legislature and the population will not be convinced that a change in the law is justified simply on the grounds that it reduces harm to the drug user or improves public health – they have other concerns that also need to be addressed. When operating in this context proponents of a new harm reduction policy which would require some change in the law have two options. They can argue that the change should be made because it is justified if we take it that the only aim of drug policy and law should be to minimise harm or to protect public health. But given the context this is unlikely to be persuasive unless they also argue that this is the right way to conceptualise the issue. Alternatively they can argue that the change in

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the law should be made because this is required even where the aims of drug law and policy includes more than simply minimising harm or protecting public health. If the latter approach is taken then three main questions need to be answered if we are to determine whether or not the law should be changed to allow a particular harm reduction policy to be introduced: (1) Does the harm reduction policy reduce harm? (2) Are there other ways to achieve the public health aim? and (3) Which objective is most important? For those who conceptualise the issue as one of either reducing risk to the drug user or purely as a public health issue the first of these questions is also important. However, on those accounts it is the only one of these questions that is important. Hence advocates of harm reduction programmes who conceptualise the issue in these ways are likely to judge that their case is made once they have answered this question in the affirmative. Furthermore, continued opposition to the proposed harm reduction programme may well puzzle those who take this line unless they also recognise the different ways of conceptualising the issues. Their basic position is that the programme is effective and that it is effective is all that is needed to show that the law should allow it. It is the second part of this claim that is the problem as it is only correct on some ways of conceptualising the issues. As a result, those who conceptualise the issue differently will not think the case has been made because they do not accept this claim. This is not simply a case of refusing to base policy on the evidence that a harm reduction policy is effective, it is a more fundamental disagreement about the role of public health in relation to the other concerns that drive drug policy in a particular jurisdiction.

5

Morality and strategy in politicising tobacco use: criminal law, public health and philosophy John Coggon



Introduction

Tobacco, a substance that is known to be highly toxic and to provide (in most regards) only relatively modest pleasure, yet which is lawfully sold and used, seems in many ways to be a peculiar product to be permitted for consumption. It has thus assumed a special place in debates about public health and regulation.1 In many countries, tobacco can be seen to produce a unique combination of regulatory challenges.2 These challenges are both practical and theoretical. If we were free to fall into a philosopher’s thought experiment and see how we would design things if starting from first principles, these challenges would perhaps be straightforward.3 Many would probably reason that tobacco is a product that morally robust political institutions would simply never allow on to the market in the first place, at least given an approach that would permit legal controls over health-affecting substances. This sort of perspective is well expressed by Emily Jackson, who says: It is undoubtedly true that if an alien from another planet was to sit down with a blank sheet of paper and a pile of evidence-based research on the harmfulness any thanks are due to A. M. Viens for comments on an earlier draft. This chapter is M informed by collaborations with the population health ethics group led by Jean Shoveller, University of British Columbia, Vancouver, Canada, and particularly by ongoing collaborations with Sarah Cunningham-Burley, Kate Frohlich, and Sarah Viehbeck. 1 See Kirill Danishevskiy and Martin McKee, ‘Tobacco: A Product like Any Other?’, (2011) 6 Health Economics, Policy and Law 265. Note, although my language may suggest otherwise, my focus in this chapter is on tobacco that is smoked (whether in a cigarette or by other means), as opposed to products such as snuff. 2 In this chapter, the discussion focuses on questions pertinent to wealthy ‘Western’ nations. The World Health Organization statistics show that over 80% of the world’s smokers live in low- and middle-income countries: www.who.int/tobacco/mpower/tobacco_facts/en/ index.html: last accessed 4 January 2013. See also Action on Smoking and Health, ‘Fact Sheet on Tobacco and the Developing World’, (August 2009), available at www.ash.org. uk/files/documents/ASH_126.pdf: last accessed 4 January 2013. 3 E.g., by designing our institutions behind a ‘veil of ignorance’, as per the argument in John Rawls, A Theory of Justice – Revised edn (Oxford University Press, 1999).

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of a range of substances, from heroin to alcohol, and crack cocaine to tobacco, it is very unlikely that they would designate substances as either legal or illegal in the same way as we currently do, if that judgement turned only on the harm the substance causes to its users.4

But, as Jackson emphasises in the same paper, we cannot usefully start from unbridled first principles. Our entry point to debating tobacco regulation is a social system where a complex and inconsistent mix of norms, expectations, values, and political and regulatory possibilities are already embedded. We have to account for what Elen Stokes designates the ‘regulatory heritage’ that is bequeathed to governments and lawmakers.5 Furthermore, whilst it is common to make a philosophical evaluation of criminal laws by reference to harm – and often within a Millian paradigm of preventing harm to others rather than oneself – it is far from clear that such a theoretical framework reflects in practice, or indeed should reflect, the basis of (criminal) law making.6 Our approach to analysing how tobacco should be regulated must be able to accommodate concerns for philosophically robust ideals, but needs to be applicable in ‘real world’ situations: understanding the social and political contexts is as important as establishing powerful evaluative postulations.7 In order to explore tobacco regulation, and what criminal law theory and public health ethics might bring, this chapter comprises three main sections. The first considers the philosophy and authority of criminal law and public health. I argue that theorists cannot usefully begin with criminal regulation or a ‘public health perspective’. Rather, a prior political theory is necessary. Nevertheless, the argument demonstrates the sorts of matters that must be considered when proposing criminal regulation. It also suggests different means of engaging in public health ethics, and their effects on policy debates. The following section moves the focus to tobacco, looking at strategy in arguments about how smoking 4 Emily Jackson, ‘Commentary 2: Criminalising the Supply of Tobacco’, (2011) 6 Health Economics, Policy and Law 279–81, at 279. 5 This is a general regulatory theory developed by Stokes. See, e.g., Elen Stokes, ‘Nanotechnology and the Products of Inherited Regulation’, (2012) 39 Journal of Law and Society 93. 6 Consider, for example, the excellent and wide-ranging analysis in Pamela R. Ferguson, ‘“Smoke gets in your eyes … ”: The Criminalisation of Smoking in Enclosed Public Places, The Harm Principle and the Limits of the Criminal Sanction’, (2010) 31 Legal Studies 259. 7 For an expansive argument for how this proposition is substantiated and how it would work, see John Coggon, What Makes Health Public? A Critical Evaluation of Moral, Legal, and Political Claims in Public Health (Cambridge University Press, 2012). See also Jonathan Wolff, ‘Harm and Hypocrisy: Have We Got it Wrong on Drugs?’, (2007) 14 Public Policy Research 126.

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might be regulated. It becomes clear that criminal law has a role, but not a particularly central one, in the wider project of ‘de-normalisation’. It is also shown that even those who do draw from a ‘philosophy of public health’ must be able to relate their arguments to a wider political agenda. The final section, therefore, presents an overview of the groundwork that must be made in the political argument (using a very widely conceived understanding of liberalism that houses a wide spectrum of theories). By looking at how theorists argue about the public or private nature of smoking, the argument suggests the means by which (apparently) philosophically defensible policy developments will occur. The points are related to criminal regulation, but must be taken within a wider context of regulatory developments that involve a programme that largely does not rely on or resort to criminalisation.

Towards an understanding of the ‘jurisdictions’ of criminal law and of public health

Whilst it would not be possible in this chapter to give more than the most superficial overview of philosophy and criminal law or philosophy and public health, there is some value in making a few general observations about the intersections of philosophy with crime and with public health. By understanding some of the ideas implicated in a conceptual framing of criminal law and of public health, and the theoretical constraints, overlaps, and limitations of each, we can begin to find our way to a useful analysis. In this section, I therefore present some foundational and substantive questions in normative theorising about criminal law and public health, situating these within analyses of the normative underpinnings of law and policy more widely. The general points made in relation to politics and philosophy provide the necessary theoretical basis for our assessment of tobacco regulation, to which the chapter moves in the third section.

Criminal law and philosophy

In a paper entitled ‘Towards a Theory of Criminal Law?’, Antony Duff presents a valuable outline of matters that are pertinent in any ex ante project of theorising about criminal law, as well as giving some detail on substantive and procedural issues within the frame of a liberal, republican system.8 Duff’s enumeration of various questions for criminal law 8 R. A. Duff, ‘Towards a Theory of Criminal Law?’, (2010) LXXXIV Proceedings of the Aristotelian Society Supplementary Volume 1.

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theory is fascinating. He does not pretend to explore or answer them all, and nor do I in this chapter. I do, however, offer in list form a distillation of Duff’s points, with a view to exposing the types of issues that must fall under the spotlight in philosophical analysis of criminal law, philosophy, and public health (including as they would relate to tobacco regulation).9 Important matters in constructing, substantiating, and seeking to apply a theory of criminal law include: • Recognising that account must be given ‘not merely [to] the scope, content and structure of the substantive criminal law, and the legislative processes through which crimes are created or defined, but also the activities of those who enforce the criminal law; the criminal process of investigation and trial; and the punishments to which those whom that process convicts become liable’;10 • Responding to the need not to beg the question whether criminal law is something that has any rightful place in human society: should we have criminal law at all?;11 • Acknowledging the fact of clashing and incommensurable values that will inhibit debates on how acceptably and satisfactorily criminal (and other) law can rationally resolve social conflicts;12 • Asking whether the theory of criminal law under development is universal or limited to a particular jurisdiction in a particular place and time (with due account given too to supranational and international legal systems);13 • Representing criminal law as just ‘one of the organs of the state’, and thus accounting for the ‘proper aims and duties of the state, and explain[ing] how this institution [i.e., criminal law] can serve those aims or assist in the discharge of those duties’;14 • Providing and substantiating the reasons for criminalising conduct (in Duff’s argument, this entails establishing that a matter is a public wrong, as opposed for example to a simple moral wrong, or a harm that would simply be most efficiently prevented through criminal regulation);15 • Providing a procedure to call those suspected of committing crimes to account;16 • Accounting for concerns, particularly in the United Kingdom and United States, about over-criminalisation, by recognising that ‘a 9 I acknowledge that this sort of list is necessarily crude and simplistic, and robs nuance from Duff’s rich presentation. I present the ideas as I do for concision and as much breadth as possible. 10 Duff, ‘Towards a Theory of Criminal Law?’, p. 1. 11 Ibid. pp. 1–2.  12  Ibid.  13  Ibid. pp. 2–7. 14   Ibid. p. 3.  15  Ibid. pp. 7–10.  16  Ibid.

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normative theory of criminal law must say something about its proper scope – if not directly about what kinds of conduct should or should not be criminalized, at least about the considerations that should bear on questions of criminalization, and about the procedures through which such questions should be settled’.17 My aim in the current chapter is not to defend a particular theory of criminal law (such as Duff’s republicanism), or to take a single such theory and apply it to tobacco regulation (for example to ask ‘how would we regulate tobacco if we were committed to a particular understanding of liberal republicanism?’).18 Rather, by presenting these general points from Duff’s paper, I aim to offer a more wide-reaching analysis that allows us to consider common problems and challenges in philosophical analyses of criminal law and public health. My summary here of key things that must be done if a satisfactory theory of criminal law is to be developed and applied demonstrates clearly the breadth of thought that is required before we can recommend the employment of criminal law as a philosophically defensible regulatory strategy. Duff’s points also give us the clear theoretical context for our theorising: we do not start with criminal law; the norms that tell us about the validity of using criminal regulation must be derived from a more foundational political theory. To emphasise, accepting the importance of the points listed above does not require that we commit ourselves to any specific political theory. We may differ on substance and reasons, whilst agreeing on the necessary theoretical ground that must be covered. For example, the points are as pertinent to an advocate for a narrow libertarianism founded on widely laissez-faire economic and moral theory as they would be to a defender of something rather more constraining.19 The important point is that to say something intelligent about how criminal law might serve the ends of a particular regulatory and legal system, it is first necessary to conceive of the wholesale normativity that would support that political system. Although criminal law is sometimes characterised as an area of law that, if not uniquely than particularly, raises questions about morality, it cannot be usefully studied in a vacuum. The same is true of public health. So, before moving to debates on tobacco regulation, it is important also to look at public health and philosophy, and briefly to 17 Ibid. p. 17 (and see pp. 17–­24). 18 In Part III of Coggon, What Makes Health Public? I present and defend the theory of political liberalism that I would defend and apply to questions of law and regulation. For an analysis that applies a particular theory of justice to tobacco regulation, see Kristin Voigt, ‘Smoking and Social Justice’, (2010) 3 Public Health Ethics 91. 19 For an overview of a spectrum of political philosophies and their bearings on debates in public health ethics, see Coggon, What Makes Health Public?, ch. 8.

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consider the relationship between political theories and their practical application.

Public health and philosophy

This book serves in part as testament to the wide and growing fascination with the idea of ‘public health ethics’. Scholars and practitioners from many fields, as well as many people engaged in policy, have found a great deal to think about under the rubric of public health. Within this surge in interest is a move to explore in detail ideas both about public health’s having an immanent and guiding moral philosophy (in contemporary analyses within the United Kingdom, this is often seen to be a utilitarian ethic), and questions of whether alternative moral theories would be more fitting and desirable as guides for public health policies and practices.20 The idea, however, that public health is something that can have an immanent and guiding moral philosophy is something that repays reflection. Reference to the ethics ‘of’ public health presents two distinct issues that fit well under the considerations of ‘jurisdiction’ here. First, by assigning one ethic to public health, we necessarily exclude others and there must be a discussion of the reasons for assigning an ethic to it, whether it be a form of utilitarianism, social justice, or something else. Second, within the wider social, political, and legal framing, we need to understand how pervasive might be the authority of public health even given its intrinsic ethic: what ‘jurisdiction’ does public health have over our lives and political institutions? I will present some thoughts about how public health itself might be defined, before exploring these points and relating them to public health law. Public health famously carries many meanings. As such, it is sometimes unclear what an author means when discussing ‘public health’ or ‘public health measures’, or writing prescriptions about what ‘public health should do’. It is thus common in many leading theoretical works on public health to find an overview of distinct definitions, often followed by a defence of the author’s own preferred understanding  – which is sometimes one of the different potential definitions,21 or sometimes a definition that seeks to capture commonalities from across 20 See Anthony Kessel, Air, the Environment and Public Health (Cambridge University Press, 2006). 21 E.g., Mark Rothstein, ‘Rethinking the Meaning of Public Health’, (2002) 40 Journal of Law, Medicine and Ethics 144.

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­ efinitions.22 Furthermore, the reasons that theorists cite for limiting d their definition of public health can differ quite radically. Some suggest pragmatic limitations.23 Others argue in favour of limits to public health practices based on principle.24 Others still, in contrast, argue that principle demands a very broad understanding be given to public health.25 In my own work, I have suggested that working to a singular definition is often counterproductive, and that those using the term public health should rather aim to be clear in a given instance about quite what they mean. Whilst conceptual clarity is important in argument, I see little ultimate reward in establishing the ‘true’ meaning of public health as if that would, once found, settle everything. The important questions ultimately relate to establishing defensible practical imperatives rather than delimiting the scope of any individual concept.26 In that vein, I would stress that of particular note for the purposes of this chapter are the following two senses, which are often given to public health:27 • Sometimes public health denotes a profession or collection of professions, where expertise and practice relate to understanding and/or promoting population health; • Sometimes public health denotes the work of government. This can be taken to refer to the narrow function of an explicitly designated public health department, or it can imply work across government aimed at the protection and promotion of people’s health. Such work can be undertaken by public bodies, but also by or in collaboration with ‘partners’, for example from industry. An attempt to find an internal ethic that might be attributed to either of these senses may draw us in various directions, and look to various sources. Bruce Jennings makes a useful presentation of how distinct ethical theories and different political theories may correspond with one another and relate to public health programmes. He then distinguishes four different ‘discourses’ of public health ethics.28 In so doing, 22 E.g., Wendy Parmet, Populations, Public Health, and the Law (Washington DC, Georgetown University Press, 2009). 23 E.g., Rothstein, ‘Rethinking the Meaning of Public Health’; Jonny Anomaly, ‘Public Health and Public Goods’, (2011) 4 Public Health Ethics 251. 24 E.g., Richard Epstein, ‘In Defense of The “Old” Public Health’, (2004) 69 Brooklyn Law Review 1421. 25 E.g., Lawrence O. Gostin and Gregg M. Bloche, ‘The Politics of Public Health: A Response to Epstein’, (2003) 46 Perspectives in Biology and Medicine S160. 26 Coggon, What Makes Health Public?, ch. 3. 27 In ibid. I present seven categories of meaning or use given to the term public health, from which these two are drawn. 28 Bruce Jennings, ‘Frameworks for Ethics in Public Health’, (2003) IX Acta Bioethica 165.

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he allows us to see the different things that might be ‘done’ with public health ethics, and also the different ends of people who might try to construct a morality of public health. It is instructive therefore to consider Jennings’ categorisations. Of themselves they separate important points, and they also permit us to recognise the theoretical strengths and limitations to arguments based on apparent public health imperatives. First, Jennings describes ‘professional ethics’. In his characterisation, this entails ‘the values and standards that have been developed by the practitioners and leaders of a given profession over a long period of time, and to identify those values most salient and inherent in the profession itself’.29 Related to public health, this will include looking at the principles that guide the profession, and the ‘mission’ of those working in public health. Jennings notes that one difficulty with this approach is that it is hard to conceive of ‘public health as a single, unified profession today’.30 Jennings’ second characterisation is of ‘advocacy ethics’. His framing here is born of the observation that a characteristic of contemporary public health is ‘less theoretical or academic than practical and adversarial’.31 In this sense, Jennings sees public health ethics as a practical agenda directed towards improving health across a population in order to achieve greater equality and social justice. He is clear that this ethical approach is geared more to achieving particular political ends than to the art of rational persuasion. Given this, he cautions that public health ethics as advocacy ‘has little to calm and reassure those outside the field who may question the legitimacy of public health’s use of its governmental or social power’.32 To push past this agenda-driven model, Jennings goes on to describe a more detached public health ethics, which he labels an ‘applied’ or ‘practical ethics’ approach. This approach comes from outside the profession and its history and draws from abstract principle. A weakness that Jennings perceives here, however, is a tendency for applied ethics only to relate to individualistic concerns. It thus suffers an inadequacy in dealing with collective concepts such as ‘the public’, ‘society’, and ‘the community’, or collective values such as ‘the common good’ or ‘the public interest’, which are all pertinent in the discussion of public health.33 Jennings therefore proposes a further, final perspective that he argues can combine the best of the other three. He labels this ‘critical ethics’. Critical public health ethics would be informed by the history and practice of public health as a profession. But it would also, 29 Ibid. p. 172.  30  Ibid.  31  Ibid. p. 173. 32   Ibid.  33  Ibid. pp. 173–­4.

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given a concern for applied ethics, draw from wider social values to inform understandings of the nature of moral problems that might be addressed through public health programmes. And in relation to advocacy ethics, Jennings’ critical ethics would require ‘the discussion of ethics and public health policy to be genuinely public or civic endeavors’.34 For him this means: Not the advocacy of a well-intentioned elite on behalf of needy clients, but the search for forums and programs of meaningful participation, open deliberation, and civic problem-solving and capacity building.35

These ideas relate usefully as we develop an understanding of the philosophy of public health and its implications for tobacco policy. The hint to a political agenda, and Jennings’ cautions about its legitimacy or authority, must be a central theme: just as Duff reminds us that we cannot evaluate a criminal law theory without knowing and evaluating the wider political framework within which it would operate, so the same goes for potential public health measures. This point perhaps bears greater emphasis in relation to public health than criminal law. A survey of the literature shows that the more influential definitions of public health and public health law contain the agenda of public health as advocacy ethics. As such, they carry an implicit political philosophy and agenda that must be examined before it can be accepted as the all-things-considered basis of policy.36 This is apparent when we consider a claim made by Larry Gostin and Lesley Stone about public health professionals, and then take Larry Gostin’s definition of public health law. Gostin and Stone tell us that: [The] public health community takes it as an act of faith that health must be society’s overarching value.37

And Gostin defines public health law as: [T]he study of the legal powers and duties of the state, in collaboration with its partners … to ensure the conditions for people to be healthy …, and of the

34   Ibid. p. 174.  35  Ibid. 36 See, e.g., the highly influential definition of public health in C-E.A. Winslow, ‘The Untilled Fields of Public Health’, (1920) 51 Science 22. See also Marcel Verweij and Angus Dawson, ‘The meaning of “public” in “public health”’, in Angus Dawson and Marcel Verweij (eds.), Ethics, Prevention, and Public Health (Oxford University Press, 2007), pp. 13–29. 37 Lawrence O. Gostin and Lesley Stone, ‘Health of the people: the highest law?’ in Angus Dawson and Marcel Verweij (eds.), Ethics, Prevention, and Public Health (Oxford University Press, 2007), pp. 59–77, at p. 60.

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limitations on the power of the state to constrain for the common good the autonomy, privacy, liberty, proprietary, and other legally protected interests of individuals. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.38

The constraints referred to in Gostin’s definition of public health law must temper any argument made on the basis of a ‘pure public health’ analysis. In other words, even if ‘public health’ tells us that tobacco should be outlawed, and even if analysis based in legal sociology tells us that criminalisation could achieve this successfully, we cannot take for granted that prohibition is the right and proper thing. Before exploring such questions in specific relation to tobacco, I will briefly explain my view of the relationship between moral and real world constraints on regulatory progress.

Ideal goals and real world problems

In the introduction to this chapter I endorsed Jackson’s view that when devising regulatory strategy on tobacco (and her point is of course a more general one) we need to account for the practical, social, political, and legal realities that we face in this society at this time. I have gone on to argue that we cannot, in an assessment of criminal law, public health, and tobacco, start either from an isolated criminal law theory or a ‘public health perspective’ on the value of permitting or prohibiting smoking. My position is that we need a foundational political theory, and using that we can assess imperatives relating to the institution and enforcement of criminal measures, and the health problems that warrant political remediation. However, leaving my position unqualified suggests my own slip into a form of ideal-type theorising that fails to account for ‘real world’ concerns. For ethics to be applied (i.e., actually to guide action), as opposed to purely evaluative (i.e., simply to allow us to assess a measure ­according to some moral standard), the understanding and accommodation of practical limitations must be possible. It is important to emphasise, therefore, that before an analysis is useful, it must be able to account for relevant considerations drawn from social and other sciences. It must also be able to accommodate the practical fact that we currently live in a society that cannot be said to be committed to 38 Lawrence O. Gostin, Public Health Law – Power, Duty, Restraint, 2nd edn (Berkeley, University of California Press, 2008), p. 4, emphasis added.

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a single system of morality; moral pluralism is a practical fact of our shared lives. Nor do people and political institutions act only according to moral imperatives, even as they see them. In other work on these matters, I have drawn extensively from the approaches of John Gray and Raymond Geuss, stressing the relevance in political philosophy of lessons drawn from disciplines such as history, sociology, anthropology, psychology, and political science.39 Context is key, and as such it makes public health ethics as naturally multidisciplinary as the science of public health.40 I would thus conclude this section by emphasising my firm agreement with the ideas I have attributed here to Jackson, and being clear that considerable account must be made, even in a normative argument, for the practical possibilities in the political and social system under analysis. Jonathan Wolff articulates well the wisdom of this position, saying that: It would be absurd to argue that there is no place for speculation about ideals – of course this is necessary, otherwise there would be nothing to inspire or direct change. However, speculation about ideals is the start, not the finish, and if philosophers want to have an influence on the direction policy takes, then there is no alternative to accepting that the status quo does have a privileged position in the debate.41

With that and the further points made above in mind, let us move now to consider arguments bearing on tobacco regulation.

Criminal law and tobacco control

The first half of this chapter has explained why, in basic deliberations on tobacco regulation, our normative start point in analysis needs to be a comprehensive political theory; we cannot begin either with criminality or public health and just ‘work from there’. It is only given the foundational political theory that we can move towards understanding and assessing imperatives concerning law and policy, thinking about the weight that should be given to scientifically demonstrable harms amongst other things. Our political theory, informed by an understanding of practical possibility, is what will determine what can legitimately 39 See Coggon, What Makes Health Public? The primary works of Gray and Geuss that I draw from are, respectively, John Gray, Two Faces of Liberalism (Cambridge, Polity Press, 2000), and Raymond Geuss, Philosophy and Real Politics (Princeton University Press, 2008). 40 See also Kessel, Air, the Environment and Public Health, Introduction. 41 Wolff, ‘Harm and Hypocrisy’, p. 133.

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be done to ameliorate health, what side-constraints there are against actions, and what means are and are not viably permissible. Ultimately it will depend on the specific nature of the theory that would guide each of our respective evaluations, but as a general claim it is quite arguable that whatever a protagonist’s view about political philosophy, some policies will be advisable given concerns for health, and at times criminal regulation will be the proper means to achieve the end.42 In this sense, imperatives can be derived from concerns for health, and the door is open (in the first instance, albeit that it may have to be closed following analysis) to achieving these through the criminal law. We must, furthermore, be careful not to exceptionalise the idea of criminal law mechanisms when considering their viability in relation to tobacco control. This is due to a point that cuts in two directions: whilst some criminal law measures that support the protection of health give rise to very meaningful objections based on moral stigmatisation (think, for example, of criminal law’s application to the transmission of HIV), other measures are generally seen as quite mundane as regards such stigmatisation (think, for example, of some road traffic offences); and on the other side of things, that a measure is not founded in criminal law does not automatically mean either that it fails to give rise to completely equivalent moral concern about matters such as unjustifiable stigmatisation (think, for example, of anti-social behaviour orders) or that the State cannot have profound impact through institutional coercion on the life choices of identifiable groups of its citizens (think, for example, of blanket bans on smoking in secure psychiatric units).43 It bears stressing too that the apparently more benign, non-coercive, non-criminal approaches to regulation encapsulated, for example, in ‘nudge theory’ or ‘libertarian paternalism’44 give rise to their own quite profound moral concern, regardless of questions such as social or moral 42 There is a band of thinkers who might not be reached by this general claim: see e.g. Petr Skrabanek, The Death of Humane Medicine and the Rise of Coercive Healthism (Bury St Edmunds, St Edmundsbury Press, 1994). Other sorts of libertarian theorists, such as Richard Epstein, whose work was noted above, would not resist the use of criminal law measures in the containment of disease in a public health emergency, even whilst they would generally resist any State-instituted measure aimed at ameliorating health. 43 See further John Coggon, ‘All to the good? Criminality, politics, and public health’, in Amel Alghrani, Rebecca Bennett, and Suzanne Ost (eds.), Bioethics, Medicine and the Criminal Law Volume I. The Criminal Law and Bioethical Conflict: Walking the Tightrope (Cambridge University Press, 2013), pp. 251–64. 44 Cass Sunstein and Richard Thaler, ‘Libertarian Paternalism is not an Oxymoron’, (2003) 70 The University of Chicago Law Review 1159; Richard Thaler and Cass Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (London, Penguin Books, 2009).

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stigmatisation.45 So, when assessing the appropriateness of instituting criminal law measures we need to think of their viability and legitimacy given other regulatory possibilities, but also to recognise that noncoercive, non-criminal alternatives may give rise to equal, or potentially even greater, controversy. Given these points, let us move to tobacco policy. I am not aware that anyone has seriously proposed criminalisation as a singular response to calls to reduce – and even eventually eliminate – smoking. I have seen no serious proposal that simply says: ‘Ban smoking, and lock up those who flout the ban.’ Whilst coercive measures emerge, outright criminalisation of smoking is not recommended as a means to bring an end to tobacco use. Commenting on the World Health Organization’s Framework Convention on Tobacco Control,46 Jackson, for example, highlights that a range of measures is required, such as advertising bans and provision of nicotine cessation services.47 In what is a brief but convincing argument, she suggests that as a matter of strategy, beginning with criminalisation would be unlikely to work on various levels. Effective strategy requires the change of social norms: the de-normalisation of smoking. From a practical perspective, Jackson, in harmony with many others, is clear that such a change of norms would not be reached through blunt criminalisation. The best method on Jackson’s view is to crush demand through a process that requires both immediate and progressively instituted measures: The best long-term solution would clearly be to eliminate the desire to smoke, and to make smoking socially unacceptable, as has happened fairly effectively with drink driving. If demand continues to exist, people will find ways to access cigarettes, even if that has to be done on the black market, rather than in their local corner shop … The widespread prohibition on smoking in public spaces has the long-term health goal of making smoking so socially awkward and inconvenient that people will be deterred from starting in the first place.48

And, she ­concludes: Past experience with illegal drugs suggests that criminalisation does not stop consumption; it simply makes it more dangerous, both to the users themselves and to society as a whole.49

45 See Karen Yeung, ‘Nudge as Fudge’, (2012) 75 Modern Law Review 122. See also the chapters in this volume by Roger Brownsword, and Robert G. Lee and Mark Stallworthy. 46 See www.who.int/fctc/en/: last accessed 20 December 2012. 47 Jackson, ‘Commentary 2’, p. 281. 48 Ibid.  49 ­Ibid.

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Jackson’s argument is presented in a short comment that responds to a proposal advanced by Kirill Danishevskiy and Martin McKee. Danishevskiy and McKee argue that it is wrong that tobacco should be treated as different to other dangerous products. They recognise, however, that pushing for an outright prohibition would not work. So they advance a strategy that would, through criminal regulation, push towards the goal of eliminating tobacco use. Given Jennings’ framing above, we might categorise theirs as an argument founded on public health ethics advocacy. We thus might also accept the pinch of salt that Jennings recommends in relation to such an approach, when we read their claim that: From a public health perspective, the arguments for eliminating [tobacco] are compelling, as were the arguments for eliminating smallpox or polio. Yet for reasons that remain unclear to us, the public health community has displayed a marked lack of ambition, seeking merely to control it. We are sufficiently realistic to recognise that we may not live to see the consignment of tobacco to the dustbin of history but that should not prevent us from starting the process.50

As explained above, it is not unusual of Danishevskiy and McKee to imply that there is a political imperative derivable from ‘public health’, or for them to view a strong advocacy (or even activist) role for those who work in public health.51 But such a view presents a problem: what is ‘public health’ that it can claim to know the way policy should be framed, not just ‘from a public health perspective’, but all things considered? In other words, what authority does public health have that its perspective should be accepted as speaking the proper direction of policy at all?52 Unless we are to advocate living in a ‘health theocracy’,53 it is not obvious that we should be persuaded about what constitutes sound policy on the back of arguments made given a ‘public health ­perspective’, or indeed that it is desirable that public health practitioners should be lobbying to control tobacco. There is not space in this chapter further to explore these questions, but it is crucial to raise them. Whilst ‘the public health community’ may be seen to present a benign, perhaps sage, voice in policy debates, 50 Kirill Danishevskiy and Martin McKee ‘Response’, (2011) 6 Health Economics, Policy and Law 283–85, at 284. 51 Cf. Gostin and Stone, ‘Health of the people’; Tony Delamothe, ‘Let us Now Praise Famous Men and Women’, (2012) 345 British Medical Journal e7605. 52 Cf. John Coggon, ‘Does Public Health have a Personality (and if so, Does it Matter if You Don’t Like it)?’, (2010) 19 Cambridge Quarterly of Healthcare Ethics 235. 53 This term is used by Jennings: see Bruce Jennings, ‘Community in public health ethics’, in Richard Ashcroft, Angus Dawson, Heather Draper, and John McMillan (eds.), Principles of Health Care Ethics, 2nd edn (Chichester, Wiley, 2007), pp. 543–48, at p. 545. See also Coggon, What Makes Health Public?, pp. 194–200.

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considerations that will offend a ‘public health perspective’ will also have a legitimate place. Advocacy ethics in this debate must be able to account for that.54 The point that I wish to explore further in the remainder of this chapter relates to policy strategy and legitimacy. Regardless of the public health community’s acceptance of the need to eliminate tobacco use, Danishevskiy and McKee’s proposal is clearly designed to overcome a political situation wherein outright prohibition in the immediate, and even medium, term is impossible. We cannot stop all smokers from smoking, but by placing carefully regulated restrictions on sales we can ‘grandfather’ smoking, permitting existing smokers to smoke whilst making it hard, perhaps impossible, for new smokers to emerge. So Danishevskiy and McKee’s practical suggestion is for a law that would see criminal sanctions attached not to smoking, but to the unlicensed distribution of products that contain nicotine.55 They see their programme as working over decades towards a gradual but complete ban. Tobacco addiction would be treated like addiction to narcotics: ‘Those unable to quit would be given a license to obtain nicotine for personal use only, drawing on the experience of drug substitution programs operating in many countries.’56 Danishevskiy and McKee contend that such an approach could be developed on the basis of existing laws. (The specific jurisdictional focus of their paper is Russia, but, as they argue, their point would have wider application.) Notwithstanding received wisdoms on the lawfulness of selling tobacco products, their argument is that consumerprotection laws ought to be interpreted as proscribing the lawfulness of selling tobacco. In the following section, I will work from this as an example of a strategy for making some aspects of tobacco use a ‘public’ matter. I will take it too that this serves as a good example of a criminal law measure that would be unrolled alongside other, non-criminal, ‘denormalising’ measures. The regulatory gradualism that is advocated by Danishevskiy and McKee and others, I will suggest, works within a liberal paradigm that distinguishes what is private and what is public, with the latter being made ‘fair game’ for regulators. By increasing the public nature of smoking over time – by politicising what was previously a private choice – jurisdiction over tobacco moves in a steady direction towards prohibition. Thinking about Danishevskiy and McKee’s proposal, alongside other potential measures for curbing tobacco use, I aim to invite discussion on the tactics involved in making smoking a public 54 See also Ronald Bayer, ‘Stigma and the Ethics of Public Health: Not Can We but Should We’, (2008) 67 Social Sciences and Medicine 463. 55 Danishevskiy and McKee, ‘Tobacco: A Product like Any Other?’, pp. 269–70. 56 Ibid., p. 270.

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issue, the legitimacy of different claims about smoking’s public nature, and the desirability and coherence of progressions in making smoking public. The discussion will be presented against philosophical argument regarding political liberalism and the ethics of smoking.

Morality, governance, and tobacco: making the private public



Other-regarding arguments and smoking

Published in 1989, Robert E. Goodin’s essay ‘The Ethics of Smoking’ sets arguments beside a now dated social and political background. Nevertheless, both in regard to philosophical argument and potential legal and regulatory options, the importance of his analysis endures.57 Goodin’s thesis is based on an intricate and detailed inquiry that considers empirical understandings of the harms and effects of smoking, commercial and social practices, law and regulation (including self-regulation, of citizens and of industry), and normative arguments based on various philosophical theories. Whilst a reader of his paper may be immediately struck by the radical changes in social values and mores since 1989, and their consequences for realisable tobacco policy, that reader may also be taken by what Goodin presents as a failure of philosophical understanding that many will see as still persisting to some considerable extent almost a quarter of a century later; the idea that smoking is best conceived as a private matter. This idea, from which many analyses of the morality of smoking derive, and upon which arguments about the political morality of State control of tobacco consumption are built, is flawed, Goodin argues. His essay is thus a response to the following: Philosophically, smoking has long been regarded as a paradigmatically privateregarding vice, best treated as such [: … ] a private vice harming only smokers themselves; and it is therefore best left to their personal discretion and moderation. Smoking has thus long been regarded as something best ­controlled through codes of etiquette and social pressure, and completely unsuited to any very much more serious social sanctions.58

I do not propose here to go through Goodin’s analysis, or to respond to or update his individual arguments. He is right that the philosophical debates have tended to be presented in the way that he suggests, and 57 Robert E. Goodin, ‘The Ethics of Smoking’, (1989) 99 Ethics ­574. 58 Ibid. p. ­574.

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that the reasons he gives undermine a claim that smoking simply should be conceived as a purely self-regarding matter. However, the burden of my concern is to consider in what ways smoking can and cannot be considered a private matter. My interest is not simply with the ethics of smoking, but the political morality of smoking. Just as it is wrong to say that smoking is absolutely private, so it would be wrong (and to be clear this is not Goodin’s suggestion) to suppose that smoking is in no sense private. By assessing how smoking is private, we come to understand why and in what ways it is open to regulation, including criminal regulation. As a basic matter of liberal principle, that one person’s conduct affects another party, harmfully or otherwise, or that we can demonstrate an interaction between persons that might be described in terms of concepts such as obligations, interests, harms, benefits, and rights, does not automatically suggest any rise of political obligations, interests, and so on. That a person’s smoking may have effects on others – even morally relevant effects – does not of itself preclude tobacco consumption’s being a private matter. ‘Private’ is not a synonym for ‘exclusively self-regarding’. At least in relation to debates on policy that are cast within the frame of a liberal political system, ‘private’ is the counter to ‘public’. By designating something as ‘private’ we are putting it outside the bounds of regulation. By saying that something is ‘public’, we are saying that it is in some senses open to regulation. (Of course there can be public protections of the rights and powers necessary to protect privacy.) The important point is that if we say smoking is public or private in a given instance, we are expressing a conclusion rather than a start point. It is not good enough in philosophical argument to beg such a fundamental question.59 We should not start from the proposition that smoking is (or is not) private. Rather, we need to explore whether or not it is private. And to do so, we will work with theoretical positions on the meaning of privacy. It is therefore useful to consider different senses of privacy that take particular effect in law and regulation. This will allow us to distinguish different sorts of claims about tobacco regulation, and map more easily the potential directions of policy-strategy.

59 See Raymond Geuss, Public Goods, Private Goods (Princeton, Princeton University Press, 2003). We might note in passing that Duff makes the same point in the development of his argument cited above. Given the weight of republican arguments in contemporary theories of public health ethics, Duff’s essay is particularly to be recommended to scholars interested in the intersections of public health ethics and criminal law theory.

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Concepts of privacy, and smoking becoming a public matter

To repeat, saying that something is private is to express a conclusion. And, in fact, it is often to express one of various possible conclusions. There are – quite coherently, if also sometimes confusingly – various senses of privacy, meaning that something can be ‘private’ in one sense whilst ‘public’ in another. This of course gives rise to overall tensions when we are then called to evaluate whether that thing should be open to regulation. The more public something is in one sense, the less normative effect will have its ‘privateness’ in another sense. (For example, many heinous acts of violence happen ‘in private’, but this presents no morally sound bar to their being public offences.) Prior to being able to make a judgement about whether something is, all things considered, best considered public, it is important to be clear about the different senses in which the matter under question might be private. There are several methods by which this conceptual work has been done. I find it useful to draw from jurisprudence relating to Article 8 of the European Convention on Human Rights; the right to respect for private and family life.60 According to this approach, we may separate privacy claims into two broad categories. The first looks just to the individual, and may be labelled ‘decisional privacy’. The second places the individual within a political society, and looks to people’s effect on each other; here the concerns are with ‘physical’, or ‘zonal privacy’, and with ‘relational privacy’. I will consider each in turn, and its bearing on arguments relating to tobacco policy. Decisional privacy and smoking In its essence, decisional privacy may be thought of in terms of Isaiah Berlin’s concept of ‘positive liberty’.61 This is the freedom of agents to reason for themselves, and to take their own decisions. Rational agency is what permits us to be subject to things such as praise, blame, reward, deserts, and so on. Our moral freedom relies on such a concept, as do many legal rights and obligations (for example ‘private law’ obligations, 60 For a more detailed presentation of the following analysis, see Coggon, What Makes Health Public?, ch. 2. Much of the conceptual work here draws from a reading of the High Court judgment in the Rampton smokers’ case: R (G and B) v. Nottinghamshire Healthcare NHS Trust; R (N) v. Secretary of State for Health [2008] EWHC 1096 (Admin). See also John Coggon, ‘Public Health, Responsibility, and English Law’, (2009) 17 Medical Law Review 127; Neil Allen, ‘A Human Right to Smoke?’, (2008) 158 New Law Journal 886. 61 Isaiah Berlin, ‘Two Concepts of Liberty’, in Isaiah Berlin, Four Essays on Liberty (Oxford University Press, 1969).

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criminal liability, public duties). Baldly stated, decisional privacy is individual autonomy. And on liberal accounts, that is something that ought to be protected and respected, albeit that constraints may be placed on what people are free to choose to do.62 Matters are complicated, however, when we take these philosophical ideas and look at human agents, because there are limits to all people’s rational agency. People act irrationally and unthinkingly. And people suffer susceptibility to (I use the terms loosely) vices and weaknesses of the will; they may be motivated by ultimately destructive short-term gain, be slaves to an addiction, and so on. As such, there is clear scope for questioning whether any given decision is ‘really free’. If we profess a commitment to respecting persons because of their capacity for autonomy, then we can also claim to be serving rather than disrespecting agents if we disregard, perhaps even overrule, their non-autonomous, albeit expressly made, choices. Broadly, theories of what constitutes an autonomous decision may be separated into three categories.63 We might just look to basic self-direction, regardless of how thoughtful it is or according to what system of rationality a decision is made. Alternatively, we might look to decisions that an actor would endorse according to some ‘second-order’ standard; a decision is judged to be autonomous when it accords with what the actor would, on reflection, want to choose according to his or her own value system.64 Finally, autonomous decisions may only be those that accord with some particular system of reasoning; for example, a universally recognisable and acceptable system of moral law, or an objective system of values that would be recognised by any reasonable person.65 In debates on the politicising of smoking, all sides seem able to found claims on concepts related to decisional privacy. Let us first consider prohibitionist arguments. As we have seen, Danishevskiy and McKee seek to frame their practical regulation, and its normative justifications, within the frame of addiction. By using an approach that ‘medicalises’ 62 As this chapter does not defend a particular political philosophy, I do not here present ideas of the different sorts of reasons or theories that have been advanced to explain when and what side-constraints constitute legitimate interferences with people’s freedom to act according to their autonomous choices. 63 See John Coggon, ‘Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?’, (2007) 15 Health Care Analysis 235. 64 On the distinction between the first- and second-order desires discussed in these first two conceptions of autonomy, see Harry G. Frankfurt, ‘Freedom of the Will and the Concept of the Person’, (1971) 68 Journal of Philosophy 5. 65 On the former, think e.g. of Kantian autonomy; on the latter, think e.g. of natural law theories.

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existing users (making them into patients and victims) and criminalises unlicensed sellers (making exploitative villains of them), Danishevskiy and McKee’s position removes the sting from concerns about unwarranted State meddling. Smoking is a public matter, because people’s decisional privacy is ultimately enhanced by protection from this ‘choice’: as the decision to smoke is non-autonomous, we help, rather than offend, the smoker by interfering with his or her apparent decision to smoke. Similarly, justifications presented as protecting children are seen as advancing their autonomy through State interference.66 The flip side of this is found in the advocacy employed by protagonists such as the Freedom Organisation for the Right to Enjoy Smoking Tobacco (Forest) – the self-dubbed ‘voice and friend of the smoker’.67 Forest’s activism attaches much to the idea that smoking simply is a free choice for adults, and the group’s website contains repeated references to the demands of respect and toleration in a democratic society. In this line of thinking, restrictive laws that would be advanced as based on decisional privacy infantilise and stigmatise smokers indefensibly. Protection of people’s autonomy requires a State that reins in much of its health promotion policy.68 Forest thus make an explicit call for the reversal of an agenda that would both de-normalise tobacco consumption and criminalise the sale of tobacco to adults. It is clear, then, that theoretical arguments can be made from either side about whether smoking is a public concern in relation to decisional questions. Whilst some may stick to the ‘old’ philosophy, holding that the choice to smoke is a personal, private matter, others argue that it is not a true matter of personal choice, and thus regulation is permissible. In measures such as Danishevskiy and McKee’s, furthermore, we see efforts to make the matter public without criminalising the smokers themselves. Physical and relational privacy and smoking As well as overcoming questions of decisional privacy, which take people as atomised, autonomous individuals, participants in debates on tobacco policy must also frame their arguments given people’s places within a structured, political society. This involves two important conceptual 66 See, e.g., British Medical Association, Behaviour Change, Public Health and the Role of the State – BMA Position Statement (BMA Ethics Department, London, 2012). 67 See www.forestonline.org: last accessed 4 January 2013. 68 Contrast also the (unsuccessful) arguments in the Rampton Smokers’ case, rooted in part in autonomy rights found in the human right to respect for private and family life. See: R v. Nottinghamshire Healthcare NHS Trust, and R (on the application of G) v. Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795.

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ideas. The first concerns people’s physical freedom in a shared society; what allows us to say that something happens ‘in public’? The second is about people’s normative relationships with one another. A liberal society must be committed to ideals such as equality of rights and freedoms. This means that, in establishing whether a right or liberty should be protected legally, we need to know not simply that allowing some conduct would be justifiable given a particular individual’s personal circumstances, but that it could justifiably be made the subject of a general right or liberty.69 Considering first of all physical privacy we find the most obvious route to making smoking a public matter. Across many jurisdictions we have seen a wave of laws prohibiting smoking in enclosed, and in some cases in open, public spaces, in places of work, and so on. Such rules, notwithstanding some doubts about claims concerning the harmfulness of second-hand smoke, are relatively easy to defend philosophically. If I choose to smoke whilst giving a lecture, I subject others to an unnecessary risk of harm. No doubt arguments can be made to defend my freedom to do this, but the weight of argument speaks against it. Greater complexity arises in regard to zonal privacy, however, when we look at cases closer to the fringes. There are places that can be easily argued to be public (lecture theatres, public libraries, court rooms, etc.). But there are also places where, for different reasons, the point may be arguable either way. For example, what about a law criminalising smoking in cars carrying children? On the one hand, cars are generally privately owned. On the other, the road is a public space. Furthermore, the State has duties to protect children’s welfare, even when, at times, this means disregarding parents’ decisions. Or what about people whose ‘home’ is not privately owned, but is a State-run institution. Whilst, in England, prisoners are allowed to smoke, other groups, such as detained psychiatric patients, face a complete ban on smoking.70 Is it easier for the State to justify an intrusion on their decisional privacy because they live in a ‘more public’ place than most private citizens? Winning the arguments such as these, one way or the other, means achieving a grip on how public smoking is, and thus gaining access to regulatory means (including criminal law) to limit freedoms to smoke.71 And we come finally to relational privacy and smoking. This is perhaps the least explored (though it has not gone unexplored) area of 69 See Coggon, What Makes Health Public?, pp. 142–48. 70 See the Health Act 2006, s. 3, and The Smoke-free (Exemptions and Vehicles) Regulations 2007. 71 Again, see the Rampton smokers’ case: R v. Nottinghamshire Healthcare NHS Trust, and R (on the application of G) v. Nottinghamshire Healthcare NHS Trust.

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philosophical analysis of smoking regulation. A prohibitionist argument based on these grounds would take something along the following lines: a person may convincingly claim decisional privacy on smoking, which is to say that he may be able convincingly to argue that smoking is his personal choice; that person may also be able to make a convincing claim that he will smoke only in places that should be considered private; nevertheless, the State cannot allow him the right to smoke without also affording that right to people who will be unjustifiably harmed by it. (There are direct analogies here with arguments that have been levelled against allowing, for example, a right to assisted suicide for adults who have decision-making capacity, are suffering from a progressive and ultimately terminal illness, who are unable to end their own lives, and who would be able to receive assistance from a willing third party. The prohibition that they face is not based on direct paternalistic concerns (moral or otherwise), but on concerns about harms to others who would be endangered by possession of the same right.72) To argue that rights to smoke cannot be satisfactorily narrowed may become an increasingly important method of argument in making smoking a public matter. Examples include attempts not to expose impressionable, non-smoking audiences such as teenagers to media that present smoking in a positive light. And in relation to Danishevskiy and McKee’s proposal, the point is clear: the ‘right’ to smoke is only afforded to those who are receiving treatment. There is no general presumption in favour of smokers; no right that is generalisable to smokers and non-smokers alike that any and all should be free to buy cigarettes. Rather, the smokers stand in relation simply to other ‘addicts’, and the sellers of tobacco stand simply in relation to other authorised vendors. ­Conclusions Smoking, at least in the United Kingdom at the start of 2013, can be viewed as at once a personal, social, medical, political, and legal (including criminal) phenomenon. This range of adjectives speaks to the array of methods used in the debates on making smoking public. It is through the sort of creeping politicisation outlined in the second half of this chapter that lobbyists will be able to overcome ‘liberal objections’ to regulations that would limit, and may ultimately outlaw, smoking.73 As a question of political strategy, such an approach appears to be 72 See e.g. Pretty v. UK (2002) 35 EHRR 1. 73 The British Medical Association’s comment piece, Behaviour Change, Public Health and the Role of the State, works essentially on these terms, and claims to aim at the target of 2035 for a complete ban on smoking in the UK.

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more productive than a blunt, overtly partisan attempt to overcome the prevailing political morality simply by noting that its norms clash with those ‘of’ public health. The regulatory methods considered in this chapter suggest that criminal law will only have a marginal role to play. The process of denormalisation requires a multifarious strategy. To be  – or at least to seem – philosophically defensible, part of that strategy requires victories in claims about why a particular aspect of tobacco control or use is the business of the State; in establishing that it is a public, rather than a private, matter. In this chapter I have sought to demonstrate why that is the important philosophical battleground (as opposed, for example, to proving that the philosophy of public health tells us not to allow smoking). Examining in detail which potential regulatory methods and arguments are or are not permissible demands engagement with, and prior defence of, a particular political morality. Achieving consensus on the ground that must be covered is much easier than finding agreement on what the dominant political morality will finally be. It is no surprise that activists on all sides seem to be playing this as a long game.

6

Pursued by the ‘fat’ police? Prosecuting the parents of obese children Tracey Elliott



Introduction: the obesity epidemic and the risks to child health

Britain is in the middle of what is frequently termed an ‘epidemic’ of obesity.1 Apparently, too many of us have been piling on the pounds and becoming fat. Statistics indicate that nearly a quarter of adults in England are obese and that two thirds of men and more than half of women are overweight.2 The 2009 Health Survey for England found that 16.1 per cent of boys and 15.3 per cent of girls aged 2–15 were obese and that a further 15.4 per cent of boys and 12.9 per cent of girls were overweight.3 If current predictions come to pass, these percentages will

1 World Health Organization (WHO), Global Strategy on Diet, Physical Activity and Health: Obesity and Overweight, Information Sheet (2003), www.who.int/mediacentre/ factsheets/fs311; National Institute for Health and Clinical Excellence (NICE), Obesity: The Prevention, Identification, Assessment and Management of Overweight and Obesity in Adults and Children (Guideline CG43, 2006), p.  8; B. A. Swinburn, G. Sacks, K. Hall, K. McPherson, D. T. Finegood, M. L. Moodie and S. L. Gortmaker, ‘The Global Obesity Pandemic: Shaped by Global Drivers and Local Environments’, (2011) 378 The Lancet 804–14; B. Caballero, ‘The Global Epidemic of Obesity: an Overview’, (2007) 29 Epidemiological Reviews 1–5; P. F. Campos, J. Wright and M. Gard, The Obesity Epidemic: Science, Morality and Ideology (Abingdon, Routledge, 2005). 2 In 2009 22 per cent of men and 24 per cent of women were obese and 66 per cent of men and 57 per cent of women were overweight including obese: Health Survey for England, 2009 Adult Trend Tables (2010) The NHS Information Centre www.ic.nhs.uk/pubs/ hse09trends; The Health and Social Care Information Centre, Statistics on Obesity, Physical Activity and Diet: England 2011 (2011) www.hscic.gov.uk/catalogue/PUB00210/ obes-phys-acti-diet-eng-2011-rep.pdf, 15. Similar studies have been produced for Scotland and Wales: The Scottish Government, The Scottish Health Survey 2009, Volume 1: Main Report (2010) www.scotland.gov.uk/Resource/Doc/325403/0104975. pdf; The Welsh Assembly, The Welsh Health Survey 2009 (2009) wales.gov.uk/topics/ statistics/publications/healthsurvey2009/?skip=1&lang=en. 3 Health Survey for England, Child Trend Tables 2009 (2010) The NHS Information Centre www.ic.nhs.uk/pubs/hse09trends; The Health and Social Care Information Centre, Statistics on Obesity, pp. 22–3.

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increase markedly over the next few years.4 Obesity has been defined as ‘a disorder in which excess body fat has accumulated to an extent that health may be adversely affected’.5 The most widely used method of calculating and defining adult obesity is by Body Mass Index (BMI). This is calculated by dividing a person’s weight in kilograms by the square of their height in metres. An adult is defined as being overweight if they have a BMI between 25 and 29.9, obese if their BMI is between 30 and 39.9 and morbidly obese if they have a BMI of more than 40.6 The calculation of adiposity in children is more difficult, as their height and weight will vary, depending on their age and sex, but their level of adiposity is commonly measured by using reference charts which set out weight, height and BMI by age and gender.7 There has been much

4 It has been predicted that by 2012 about a third of adults (nearly 13 million people) will be obese and that this could rise to nearly 40 per cent by 2025: P. Zaninotto, J. Head, E. Stamatakis, H. Wardle and J. Mindell, ‘Trends in Obesity Among Adults in England from 1993 to 2004 by Age and Social Class and Projections of Prevalence to 2012’, (2009) 63 Journal of Epidemiology and Community Health 140–46; T. Lobstein and R. J. Leach, Foresight, Tackling Obesities: Future Choices. Project Report, 2nd edn (2007), p. 9: www.bis.gov.uk/assets/bispartners/foresight/docs/obesity/17.pdf. It has been predicted that approximately 25 per cent of young people under 20 will be obese by 2025: Lobstein and Leach, Tackling Obesities, p. 36. Cf. E. Stamatakis, P. Zaninotto, E. Falaschetti, J. Mindell and J. Head, ‘Time Trends in Childhood and Adolescent Obesity in England from 1995 to 2007 and Projections of Prevalence to 2015’, (2010) 64 Journal of Epidemiology and Community Health 167–74. 5 Royal College of Physicians, Reducing and Preventing Obesity – Everything Must Change (2004), p.  3. Cf. WHO, Obesity and Overweight, Factsheet No. 311 (2011), www. who.int/mediacentre/factsheets/fs311/en/; House of Commons Health Committee, Obesity, HC 23–1 (2004), p. 11. 6 NICE, Obesity, p. 141. In adults, obesity is also measured by waist measurement: ‘with raised waist circumference defined as equal to or greater than 102cm in men and equal to or greater than 88cm in women. In 2004, approximately 31% of men and 41% of women were classified as having a raised waist circumference.’ ibid. 7 W. H. Dietz and T. N. Robinson, ‘Use of the Body Mass Index (BMI) as a Measure of Overweight in Children and Adolescents’, (1998) 132 Journal of Pediatrics 191– 93; H. N. Sweeting, ‘Measurement and Definitions of Obesity in Childhood and Adolescence: A Field Guide for the Uninitiated’, (2007) 6 Nutrition Journal 32; T. Lobstein, ‘Prevalence and trends in childhood obesity’, in D. Crawford, R. W. Jeffery, K. Ball and J. Brug (eds.), Obesity Epidemiology: From Aetiology to Public Health, 2nd edn (Oxford University Press, 2010), pp. 3–4. The WHO has produced a set of growth charts and tables for children up to 5 years of age (www.who.int/childgrowth/ standards/bmi_for_age/en/index.html) and for children from 5 to 19 (www.who.int/ growthref/who2007_bmi_for_age/en/index.html). National BMI-for-age reference charts have also been produced, see, e.g.: T. J. Cole, J. V. Freeman and M. A. Preece, ‘Body Mass Index Reference Curves for the UK, 1990’, (1995) 73 Archives of Disease in Childhood 25–9; R. J. Kuczmarski, C. L. Ogden, S. S. Guo, L. M. Grummer-Strauss, K. M. Flegal, Z. Mei, R. Wei, L. R. Curtin, A. F. Roche and C. L. Johnson, ‘CDC Growth Charts for the US: Methods and Development’, (2002) Vital Health Statistics, series 11, number 246, www.cdc.gov/growthcharts/2000growthchart-us.pdf; M. F. Rolland-Cachera, T. J. Cole, M. Sempé, J. Tichet, C. Rossignol and A. Charraud,

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dispute about the charts most suitable for use and the relevant ‘cut off’ points signalling overweight or obesity,8 but current NICE guidance recommends using UK 1990 BMI charts9 to measure adiposity in children and young persons. NICE recommends that children who have a BMI at or above the 91st centile should be regarded as being overweight and those at or above the 98th centile as being obese.10 There is disagreement as to whether obesity should be regarded as a ‘disease’, or merely as a risk factor for other illnesses,11 but it is regarded as being medically significant even in those who are currently well, because of the risks to health that the condition poses. Obesity is a significant risk factor for a number of chronic diseases which can threaten or shorten life, including: cardiovascular disease,12 type 2 diabetes,13 ‘Body Mass Index Variations: Centiles from Birth to 87 Years’, (1991) 45 European Journal of Clinical Nutrition 13–21. 8 See, e.g., M. de Onis, A. Onyango, E. Borghi, A. Siyam, M. Blossner and C. Lutter, ‘Worldwide Implementation of the WHO Child Growth Standards’, (2012) 15 Public Health Nutrition 1603–10; M. de Onis and T. Lobstein, ‘Defining Obesity Risk Status in the General Childhood Population: Which Cut-offs Should we Use?’, (2010) 5 International Journal of Pediatric Obesity 458–60; Lobstein, ‘Prevalence’, pp. 4–5. 9 NICE,  Obesity,  para. 1.2.2.12  (www.nice.org.uk/nicemedia/pdf/CG43NICEGuideline. pdf). This guidance was reviewed in 2011: www.nice.org.uk/nicemedia/ live/11000/57615/57615.pdf. 10 NICE, Obesity, p.  38. Cf. P. Bundred, D. Kitchiner and I. Buchan, ‘Prevalence of Overweight and Obese Children between 1989 and 1998: Population based Series of Cross sectional Studies’, (2001) 322 British Medical Journal 1–4, at p. 3. In 2000 an expert panel assembled by the International Obesity Task Force (IOTF) published a set of cut-off points for obesity in childhood based on international data (from Brazil, Great Britain, Hong Kong, the Netherlands, Singapore and the USA) and linked to the commonly accepted adult cut-off points of a BMI of 25 kg/m2 for overweight and 30 kg/m2 for obesity: T. J. Cole, M. C. Bellizzi, K. M. Flegel and W. H. Dietz, ‘Establishing a Standard Definition for Child Overweight and Obesity Worldwide: International Survey’, (2000) 320 British Medical Journal 1240. The WHO child growth standards suggests cut-offs for ‘overweight’ and ‘obesity’ for children under 5 of +2 Standard deviation and +3SD respectively, and for children aged between 5 and 19 of +1SD and +2SD, values which are equivalent to the adult cut-off points: www. who.int/growthref/growthref_who_bull/en/index.html. 11 See, e.g., S. Heshka and D. B. Heshka, ‘Is obesity a disease?’, (2001) 25 International Journal of Obesity 1401–4. Cf. WHO, International Statistical Classification of Diseases and Related Health Problems, 10th revised edn (2010), (‘ICD-10’). 12 Royal College of Physicians, Reducing and Preventing Obesity, pp. 9–10; Nuffield Council on Bioethics, Public Health: Ethical Issues (2007), paras. 5.1–5.3; P. Kopelman, ‘Health Risks Associated with Overweight and Obesity’, (2007) 8 Obesity Reviews (suppl 1) 13; M. Juonala, C. G. Magnussen, G. S. Berenson, A. Venn, T. L. Burns, M. A. Sabin, S. R. Srinivasan, S. R. Daniels, P. H. Davis, W. Chen, C. Sun, M. Cheung, J. S. A. Vikari, T. Dwyer and O. T. Raitakari, ‘Childhood Adiposity, Adult Adiposity and Cardiovascular Risk Factors’, (2011) 365 New England Journal of Medicine 1876–85; D. W. Haslam and W. P. T. James, ‘Obesity’, (2005) 366 Lancet 1197–1209, at p. 1200. 13 Royal College of Physicians, Reducing and Preventing Obesity, pp. 8–9; Haslam and James, ‘Obesity,’ pp. 1200–1; S. G. Wannamethee and A. G. Shaper, ‘Weight change and Duration of Overweight and Obesity in the Incidence of Type 2 Diabetes’, (1999) 22 Diabetes Care 1266–72.

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liver fibrosis and cirrhosis,14 asthma,15 sleep apnoea16 and certain types of cancer.17 It has also, even before it becomes severe, been associated with mental health problems, including depression in adolescents,18 although the relationship between mental disorder and obesity in children and adolescents is complex and not completely understood.19 It appears that there is a reciprocal relationship between obesity and depression, with depression being a predictor of obesity in adolescents, 20 and childhood obesity increasing the risk of developing depression.21 However, there 14 Royal College of Physicians, Reducing and Preventing Obesity, pp. 11–12; Haslam and James, ‘Obesity’, at p. 1202; H. M. Patton, C. Sirlin, C. Behling, M. Middleton, J. B. Schwimmer and J. E. Lavine, ‘Pediatric Nonalcoholic Fatty Liver Disease: a Critical Appraisal of Current Data and Implications for Future Research’, (2006) 43 Journal of Pediatric Gastroenterology and Nutrition 413–26. 15 E.g. S. R. Lucas and T. A. E. Platts-Mills, ‘Paediatric Asthma and Obesity’, (2006) 7 Paediatric Respiratory Reviews 233–38; N. Ahmad, S. Biswas, S. Bae, K. E. S. Meador, R. Huang and K. P. Singh, ‘Association between Obesity and Asthma in US Children and Adolescents’, (2009) 46 Journal of Asthma 642. 16 A condition which causes breathing to be interrupted or to cease during sleep. Royal College of Physicians, Reducing and Preventing Obesity, p.  11; Haslam and James, ‘Obesity’, 1201; R. Tauman and D. Gozal, ‘Obesity and Obstructive Sleep Apnea in Children’, (2006) 7 Paediatric Respiratory Reviews 247–59. 17 Royal College of Physicians, Reducing and Preventing Obesity, pp.  12–13; Haslam and James, ‘Obesity’, 1201; E. E. Calle, C. Rodriguez, K. Walker-Thurmond and M. J. Thun, ‘Overweight, Obesity and Mortality from Cancer in a Prospectively Studied Cohort of US Adults’, (2003) 348 New England Journal of Medicine 1625–38; G. Taubes, ‘Unraveling the Obesity–Cancer Connection’, (2012) 335 Science 28–32. 18 See, e.g., R. L. Sjöberg, K. W. Nilsson and J. Leppert, ‘Obesity, Shame and Depression in School-Aged Children: A Population-Based Study’, (2005) 116 Pediatrics e389–e392; R. Cornette, ‘The Emotional Impact of Obesity on Children and Adolescents’, (2008) 5 World Views on Evidence-Based Nursing 136–41; L. Y. Gibson, ‘An Overview of Psychosocial Symptoms in Obese Children’, in D. Bagchi (ed.), Global Perspectives in Childhood Obesity (London, Academic Press, 2011), ch. 22, pp. 233–44. 19 National Obesity Observatory, Obesity and Mental Health (2011) www.noo.org.uk/ uploads/doc/vid_10266_Obesity%20and%20mental%20health_FINAL _070311_ MG.pdf; M. A. Napolitano and G. D. Foster, ‘Depression and Obesity: Implications for Assessment, Treatment and Research’, (2008) 15 Child Psychology: Science and Practice 1–20. 20 E.g., National Obesity Observatory, Obesity and Mental Health, p.  9; E. Stice, K. Presnell, H. Shaw and P. Rohde, ‘Psychological and Behavioural Risk Factors for Obesity Onset in Adolescent Girls: a Prospective Study’, (2005) 73 Journal of Consulting and Clinical Psychology 195–202; E. T. Liem, P. J. J. Sauer, A. J. Oldehinkel and R. P. Stolk, ‘Association between Depressive Symptoms in Childhood and Adolescence and Overweight in Later Life: Review of the Recent Literature’, (2008) 162 Archives of Pediatrics & Adolescent Medicine 981–88; F. S. Luppino, L. M. deWit, P. F. Bouvy, T. Stijnen, P. Cuijpers, B. J. Penninx and F. G. Zitman, ‘Overweight, Obesity and Depression: A Systematic Review and Meta-analysis of Longitudinal Studies’, (2010) 67 Archives of General Psychiatry 220–29; B. White, D. Nicholls, D. Christie, T. J. Cole and R. M. Viner, ‘Childhood Psychological Function and Obesity Risk across the Lifecourse: Findings from the 1970 British Cohort Study’, (2012) 35 International Journal of Obesity 511–16. 21 See, e.g., Sjöberg et al., ‘Obesity, Shame and Depression in School-Aged Children’, and Cornette, ‘The Emotional Impact of Obesity on Children and Adolescents’; J. B. Scwimmer, T. M. Burwinkle and J. W. Varni, ‘Health-Related Quality of Life

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are studies that suggest that obese ­children are not ‘predestined for depression’,22 that few obese children are depressed or have low self esteem23 and that obesity limited to childhood does not increase the risk of adult psychological illness.24 Since young people who are overweight have a substantially increased chance of being overweight adults, 25 the concern is that, unless overweight and obese children are assisted to bring their weight within what are regarded as ‘normal’ parameters, their lives may be blighted and cut short by preventable ill health, and that the population will become inexorably more obese, with fat adults having fat children, who will in turn become fat adults and have fat children and so on. The ‘obesity epidemic’ also has serious financial implications for the National Health Service (NHS) and for the economy as a whole, since the estimated cost to the NHS of treating obesity and health problems caused or exacerbated by obesity has been estimated as being between half a billion26 and a billion27 pounds a year, and the National Audit Office has suggested that the wider cost to the economy is even greater and could amount to two billion pounds per year through obesityrelated illness: leading to workers taking some eighteen million sick days off per year and to the loss of 40,000 years of working life per year from premature death.28 It has been accepted that many factors contribute to the rising rates of adult and childhood obesity, with environmental and behavioural changes, such a rise in sedentary behaviour, 29 and the increased of Severely Obese Children and Adolescents’, (2003) 289 Journal of the American Medical Association 1813–19; Luppino et al., ‘Overweight, Obesity’. 22 A. J. Hill, ‘Fed up and Friendless?’, (2005) 18 The Psychologist 280–83, at p. 282. 23 J. Wardle and L. Cooke, ‘The Impact of Obesity on Psychological Well-being’, (2005) 19 Best Practice & Research Clinical Endocrinology & Metabolism 421–40. 24 R. M. Viner and T. J. Cole, ‘Adult Socioeconomic, Educational, Social and Psychological Outcomes of Childhood Obesity: a National Birth Cohort Study’, (2005) 330 British Medical Journal 1354. 25 Royal College of Physicians, Reducing and Preventing Obesity, p. 4; Cf. E. Charney, H. C. Goodman, M. McBride, B. Lyon and R. Pratt, ‘Childhood Antecedents of Adult Obesity (do Chubby Infants become Obese Adults?)’, (1976) 295 New England Journal of Medicine 6–9; C. M. Wright, L. Parker, D. Lancit and A. W. Craft, ‘Implications of Childhood Obesity for Adult Health: Findings from Thousand Families Cohort Study’, (2001) 323 British Medical Journal 1280–84. 26 National Audit Office, Tackling Obesity in England (2001), HC 220, pp.  1, 16 and Appendix 6. 27 Department of Health, Choosing Health: Obesity Bulletin, Issue 1 (2006), p. 2. 28 National Audit Office, Tackling Obesity in England, pp. 1, 17 and Appendix 6. 29 Nuffield Council, Public Health, para. 5.8; NICE, Obesity; Lobstein and Leach, Tackling Obesities, Part 2; C. B. Ebbeling, D. B. Pawlak and D. S. Ludwig, ‘Childhood Obesity: Public Health Crisis, Common Sense Cure’, (2002) 360 Lancet 473–82. For example, jobs and leisure pursuits have become more sedentary, we drive more

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availability and consumption of energy dense food and drinks30 playing a role. Given that the causes of obesity are complex and diverse, it has generally been agreed that a wide range of solutions need to be adopted if obesity is to be tackled.31 Government interventions aimed at halting the increase in obesity among children have tended to favour less intrusive interventions,32 preferring to ‘nudge’ individuals towards making healthy decisions about their diet rather than coercively forbidding or enforcing food choices.33 The focus has largely been on aiming to educate and encourage parents to maintain a healthy lifestyle for themselves and their children,34 and to provide effective tailored weight management support at a local level for those who are already overweight or obese,35 as well as developing an enhanced role for local authorities, who are increasingly working with local NHS bodies (including GP practices and community pharmacies) and other partners (such as local businesses), to develop obesity prevention strategies and treatment interventions, and to make it easier for individuals to lead physically active lives and make healthy food choices.36 However, it has also been recognised by government authorities, medical practitioners and the media that parents play a key role in developing their children’s tastes and habits in relation to diet and physical activity37 and that those with parental responsibility

and cycle or walk less, use more labour-saving devices and fears about safety cause parents to place restrictions upon children playing outside. 30 Nuffield Council, Public Health, para. 5.7; Lobstein and Leach, Tackling Obesities, Part 2; Ebbeling, Pawlak and Ludwig, ‘Childhood Obesity’. For example, portions have increased, eating out and snacking/grazing have increased, we eat more processed food, which often contains ‘hidden’ fats and sugars, we drink more fizzy and high-calorie drinks. 31 NICE, Obesity; Nuffield Council, Public Health, paras. 5.11–5.12; National Audit Office, Tackling Child Obesity (2006). 32 Department of Health, Healthy Lives, Healthy People: A Call to Action on Obesity in England (2011), p. 6. 33 Re the ‘nudge agenda’ in public health, see, e.g., A. Kessel and P. Allmark, ‘Déjà vu: Groundhog day for Public Health Policy?’, (2011) 6(1) Food Ethics Magazine 10–11; T. M. Marteau, D. Ogilvie, M. Royland, M. Suhrcke and M. P. Kelly, ‘Judging Nudging: can Nudging Improve Population Health?’, (2011) 342 British Medical Journal d.228; R. H. Thaler and C. Sunstein, Nudge: Improving Decisions about Health, Wealth and Happiness (Michigan, Caravan Books, 2008). 34 E.g. The ‘Change 4 Life’ programme: http://change4life.icnetwork.co.uk/ and NHS, Healthy Weight, Healthy Lives: Why Your Child’s Weight Matters (2008), leaflet 277819 (www.htmc.co.uk/resource/data/htmc1/docs/why your child’s weight matters. pdf). 35 Department of Health, Healthy Lives, pp. 6, 23–24. 36 Ibid., pp. 27–­31. 37 See, e.g., the statement by the Department for Children, Schools and Families on Obesity in relation to the ‘Every Child Matters’ initiative (2009): ‘The primary

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have legal and moral duties to care for their children and to protect their children from harm.38 As Viner and others have recognised: ‘It is but a short step from seeing parents as agents of change to blaming them for their child’s obesity’,39 and it has been suggested in some quarters that where children become obese as a result of parental persistent failure to provide their children with an appropriately healthy diet and are at risk of suffering significant harm to their health, greater consideration should be given to using the law to protect the children concerned and to hold the parents to account for their failure.40 In the last few years there have been a number of cases in which obesity as a form of neglect has played at least a contributory factor in care proceedings, and the well-publicised prosecution of pet owners for cruelty in allowing their animals to become obese has led some to call for the parents of very obese children to be prosecuted for neglect.41 In this chapter, I consider the use of child protection legislation and the criminal law against the parents of obese children in England and the United States, the elements of the current offence of child cruelty and the extent to which it would be possible and justifiable to use this offence to prosecute the parents of obese children.

responsibility of course rests with parents and while it is not the role of Government to tell people how to live their lives, the Government is committed to helping families eat better and lead more healthy and active lives.’ 38 Children and Young Persons Act 1933, s. 1; Children Act 1989, s. 3. For a suggested list of responsibilities, see. N. Lowe and G. Douglas, Bromley’s Family Law, 10th edn (Oxford University Press, 2007), p. 377. 39 R. M. Viner, E. Roche, S. A. Maguire and D. E. Nicholls, ‘When does Childhood Obesity become a Child Protection Issue?’, (2010) 341 British Medical Journal 375– 77, at p. 375. 40 E.g., K. Bainham, ‘Is the Law a Fat Ass?’, (2007) 157 New Law Journal 269; BBC News Northern Ireland, ‘Trust Doctor in Child Obesity Warning’, (2010), www. bbc.co.uk/news/uk-northern-ireland-10734780; L. Murtagh and D. S. Ludwig, ‘State Intervention in Life-threatening Childhood Obesity!’, (2011) 306 Journal of the American Medical Association 206–7. In 2007, Dr Matt Capehorn, a Rotherham GP specialising in obesity (now the clinical director of the National Obesity Forum) put forward a motion at a British Medical Association conference calling for obese children under 12 to be taken into care and for childhood obesity to be treated as neglect in cases where the parents refuse to listen to the advice of health care experts. The motion was rejected. See: B. Jeffrys, ‘Child Obesity a “Form of Neglect”’, BBC News, 14 June 2007, http://news.bbc.co.uk/1/hi/health/6749037.stm; National Obesity Forum, ‘Should Parents Lose Custody of Super Fat Kids?’, 11 July 2011, www.nationalobesityforum.org.uk/index.php/_news_/599-should-parents-lose-custody-of-super-obese-kids.html. 41 See, e.g.: Bainham, ‘Is the Law a Fat Ass?’; Jeffrys, ‘Child Obesity’; A. Cole and Z. Kmietowicz, ‘BMA Rejects Call for Parents of Obese Children to be Charged with Neglect’, (2007) 334 British Medical Journal 1343.

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Obesity as a child protection issue in England and the United States

Obesity has emerged as a child protection issue in recent years, with some local authorities42 using their powers to institute section 47 investigations43 and care order proceedings44 in cases where they regard parents as having harmed their children by allowing them to become obese and by subsequently failing to take adequate steps to protect them from suffering further harm to their health. A well-publicised example of this was the case of Connor McCreaddie, a morbidly obese eight-yearold boy, who was reported to weigh 14 stones (196 pounds, 88.9 kilograms) and who, as a result of this, found it difficult to wash and dress himself and regularly missed school because of health problems. It was accepted by those involved in the case that his mother was a loving parent, but she admitted that she found it difficult to resist Connor’s demands for calorie-dense food, such as chips and burgers. The North Tyneside Council, Connor’s local authority, instituted an investigation under s. 47 of the Children Act 1989, on the basis that they had reasonable cause to suspect that Connor was ‘suffering, or was likely to suffer significant harm’,45 and arranged a child protection conference to consider his case. It was reported that Connor might be placed on the

42 K. Widdop, ‘3 Kids in Care for Being Fat’, News of the World, 9 September 2007, in which it was revealed that at least three children had been taken into care by social workers in Tower Hamlets, Lincolnshire and Cumbria, and that Lambeth Council had placed a child on the ‘at risk register’ for being obese. Cf. ‘Council put Child, 5, into Care for Being Obese’, The Telegraph, 5 December 2011; and L. Hull, ‘Child of Five Taken from Parents for Being Obese: Social Workers say they Didn’t do Enough to Control Weight’, Mail Online, 5 December 2011, www.dailymail.co.uk/ news/article-2069986/, where it was reported that during the year 2009/2010 four children had been taken into care ‘for obesity reasons’, and that Northumberland, Sunderland, Dundee, Tameside and Lewisham councils had taken obese children into care for reasons connected with their obesity. 43 Under the Children Act 1989, s. 47, a local authority is under a duty to investigate the welfare of a child in their area when the local authority ‘has reasonable cause to suspect that a child is suffering, or is likely to suffer significant harm’, and must make ‘such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare’. 44 Children Act 1989, s. 31. Before a care order is made the court must be satisfied that: ‘the child concerned is suffering, or is likely to suffer, significant harm’ and ‘that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child being beyond parental control’ (s. 31(2)(a) and (b)). 45 Children Act 1989, s. ­47.

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child protection register,46 or that an application might be made to take him into care to enforce his weight loss and to safeguard his health.47 However, at the conference it was agreed that he should remain in his mother’s care, with a formal agreement being reached ‘to safeguard and promote the child’s welfare’.48 Since then, it has been reported by the BBC that obesity has played a part in at least 20 child protection cases in the UK over the past year,49 and replies to requests made under the Freedom of Information Act by newspapers confirm that obesity has been a contributing factor in a small number of cases in which children have been taken into care.50 These media-reported cases may be seen as indicating that some local authorities are making increased use of public law care proceedings in respect of obese children; however, the data available is somewhat limited and insufficiently reliable for an informed and reliable evidence-based assessment to be made.51 The press reports of such cases tend to raise rather more questions than they answer. For example, whether obesity is the sole or merely a contributing factor in such cases, the level of obesity prompting local authority concern and whether certain local authorities are disproportionately taking obese children into care. Perhaps unsurprisingly, considering that it is reported to be the fattest country in the developed world,52 child protection proceedings in the USA have been brought against the parents of obese children in a number of states,53 and there are a number of reported cases in which obese children have been taken into care. All of these decisions have involved children who were extremely obese, but in all of them there were significant additional factors  – in particular, a history of ­parental noncompliance with educational and medical authorities, which appears to have been the prime consideration in the taking of the children 46 Commonly known as the ‘at risk register’. The maintenance of a separate Child Protection Register in England was phased out by 1 April 2008 and replaced by the Integrated Children’s System and the existence of the Child Protection Plan: Department for Children, Schools and Families, Working Together to Safeguard Children (2010). 47 S. K. Templeton, ‘This Child is Just 8 years old but Weight 14 stone’, Sunday Times, 25 February 2007, p. 14. 48 ‘Obese Boy Stays With Mother’, Guardian Unlimited, 27 February 2007. 49 Jeffrys, ‘Child Obesity’. 50 Widdop, ‘3 Kids in Care for Being Fat’; Hull, ‘Child of Five Taken’. 51 Cf. Viner, Roche, Maguire and Nicholls, ‘Childhood Obesity’, 375. 52 World Health Organization, Global InfoBase Online, https://apps.who.int/infobase/; Nuffield Council, Public Health, p. 83. 53 California, Indiana, Iowa, New Mexico, New York, Pennsylvania and Ohio: Murtagh and Ludwig, ‘State Intervention’, 206; T. J. Sheeran, ‘Ohio Officials Take 200 Pound Boy from Mother’, 29 November 2011, Huffington Post, www.huffingtonpost. com/2011/11/29/ohio-officials-take-200-p_n_1118186.html.

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concerned into care. For example, in the case of LT,54 a morbidly obese ten-year-old girl weighing 270 pounds (122.5 kilograms) and suffering from depression following the breakdown of the parents’ marriage, she was found to be a ‘child in need of assistance’55 and removed from her mother’s care and placed in a residential facility. The court found that LT’s mother had been unable to assist her daughter to lose weight and had failed to attend dietary classes, encouraging her daughter to eat as a means of coping with the stress of her parents’ divorce. However, it appears that LT’s psychiatric problems (she had been diagnosed as suffering from severe depression and an infantile personality disorder)56 were regarded by the court as being of more significance than her obesity. Whilst the court at first instance ordered LT to ‘be placed in a residential treatment facility to address the child’s problems of morbid obesity, depression and personality disorder’,57 they determined that she required immediate treatment ‘to cure or alleviate her serious mental illness or emotional damage’,58 using a section of the Iowa Code that defined a child in ‘need of assistance’ as one who needed medical treatment to ‘cure or alleviate serious mental illness or disorder, or emotional damage’.59 The Court of Appeals agreed with the first instance court’s determination,60 but nevertheless took into account LT’s obesity in two respects. First, because it interfered with ‘the socialization a child requires to develop physically, mentally and emotionally’, and second, because of the potential risks which it posed to her future health: ‘Liza’s obesity is a potentially life-threatening condition which will likely result in a significantly increased risk of hypertension and a decreased life expectancy.’61 In a subsequent American case, In re DK,62 the court attempted to provide some guidance as to when it would be justifiable to take an 54 In the Interest of LT, a Minor Child (1990) 494 NW 2d 450 (Court of Appeals, Iowa). For discussion of this case see: J. T. Hayes and L. L. Sicafuse, ‘Is Childhood Obesity a Form of Child Abuse? Factors to Consider in Judicial Rulings’, (2010) 94 Judicature 20–27, at p. 21; C. George, ‘Parents Super-sizing Their Children: Criminalizing and Prosecuting the Rising Incidence of Childhood Obesity’, (2010) 13 De Paul Journal of Health Care Law 33–75, 62–63; M. Mitgang, ‘Childhood Obesity and State Intervention: an Examination of the Health Risks of Pediatric Obesity and When they Justify State Obesity’, (2011) 44 Columbia Journal of Law and Social Problems 553, 563–64; D. Patel, ‘Super-sized Kids: Using the Law to Combat Morbid Obesity in Children’, (2005) 43 Family Court Review 163–77, 170. 55 Under the Iowa Code, section 232.2(6)(f) (1991); (1990) 494 NW 2d 450, 452. 56 (1990) 494 NW 2d 450, 451. 57 Ibid.  58  Ibid. 59 Iowa Code; (1990) 494 NW 2d 450, 452. 60 Ibid.  61 ­Ibid. 62 (2002) 58 Pa D & C 4th 353 (Court of Common Pleas, Pennsylvania). See also: In the Interest of GC (2002) 66 EW 3d 517, where the threat to the child taken into care, a

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obese child into care. The minor concerned was a 16-year-old boy who, although only 5 feet 3 inches tall, weighed 451 pounds (205 kilograms). As a result of his obesity, DK suffered from high blood pressure, respiratory problems and sleep apnoea (which meant that he had to have oxygen at night), an enlarged liver (a precursor to liver damage), insulin resistance (a risk factor for type 2 diabetes) and knee pain. He had gained 100 pounds (45.4 kilograms) over the past year and had a history of absenteeism and poor performance at school. DK’s mother was morbidly obese and housebound, and had taken no steps to improve his diet or school attendance. The court, who commented that the case was an ‘extreme’ one,63 placed DK in the care of the local Children and Youth Services, but indicated that such a course would not be justified merely because the child was overweight: ‘the obesity must be of a severe nature reaching the life threatening or morbid state, which has also manifested itself in physical problems … or mental problems’.64 These comments were approved and adopted by a New York Family Court in the Brittany T case,65 which involved a 12-year-old girl who weighed 266 pounds (120.7 kilograms), who was taken into care when her parents were found to have wilfully violated a supervision order requiring them to ensure that she attended school and the gym regularly, and to cooperate with exercise and nutrition education programmes. Whilst Brittany suffered from a number of conditions as a result of her morbid obesity,66 she was taken into care primarily because of the continued failure of her parents to cooperate with attempts to change Brittany’s lifestyle and to engage with educational and medical programmes, which the court regarded as amounting to neglect. It should also be noted that the court recognised that ‘less-drastic remedies should generally be attempted first’.67 One cannot draw any grand conclusions as to the use of child protection proceedings in respect of obese children in America from these few reported decisions. However, the approach adopted by the courts, boy of four, who weighed 97 pounds, was more imminent, since he had already been hospitalized for mild congestive heart failure. In common with the other cases, his mother had failed to cooperate with family services or medical advice. In the case of Anamarie Martinez-Regino, which is discussed in S. Arani, ‘State Intervention in Cases of Obesity-Related Medical Neglect’, Boston University Law Review 82: 875–92, where a three-year-old, 117-pound girl was taken into care by New Mexico authorities, there had also been parental failure to follow medical advice in relation to diet. 63 Ibid., 358.  64  Ibid. 65 In the Matter of Brittany T (2007) 15 Misc 3d 606 (Family Court, Chemung County, New York). 66 Ibid. p. 611: gallstones, a fatty liver, sleep apnoea, intermittent high blood pressure, pain in her knee joints, insulin resistence and recent depression. 67 Ibid. p. ­619.

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particularly in the In re DK and Brittany T cases, appears to have similarities with the framework for practice in respect of obesity and child protection intevention proposed by Viner and others in 2010.68 They suggested that childhood obesity in itself ought not to lead to the institution of child protection proceedings, although the possibility that the obesity was caused by abuse or neglect ought to be considered.69 Similarly, a mere parental failure to reduce their child’s weight ought not to raise child protection concerns, since the evidence indicates that it is difficult to prevent obesity and even more difficult to treat it successfully.70 However, they regard ‘consistent failure to change lifestyle and engage with outside support’71 as indicating neglect. Viner recognised that obesity may just be a factor amongst wider concerns relating to the child’s welfare and emphasised the importance of conducting a full multidisciplinary assessment to evaluate these concerns.72 In the case of extremely obese children, it was suggested that this assessment should be particularly alert to the possibility of sexual abuse or ill-treatment, since studies have indicated higher than normal reported rates of such abuse amongst adult bariatric surgery patients.73

From care proceedings to p ­ rosecution?

Although, as we have seen, obesity has featured as a factor in a number of care proceedings in England, to date there have been no reported prosecutions of parents for cruelty in allowing their children to become obese.74 The suggestion that the criminal law should be used to prosecute the parents of obese children for neglect came to prominence in the UK following the first successful prosecution for animal cruelty 68 Viner, Roche, Maguire and Nicholls, ‘Childhood Obesity’. 69 Ibid. p. 376. 70 Ibid. A. F. Haynos and W. T. O’Donoghue, ‘Universal Childhood and Adolescent Obesity Prevention Programmes: Review and Critical Analysis’, (2012) 32 Clinical Psychology Review 383–99. 71 Ibid. In F v. Suffolk CC [1981] 2 FLR 208, it was held that failure to ensure that a child received adequate medical care could amount to harm for the purposes of s. 31, Children Act 1989. 72 Ibid. 73 Ibid. See, e.g., C. M. Grillo, M. A. White, R. M. Masheb, B. S. Rothschild and C. H. Burke-Martindale, ‘Relation of Childhood Sexual Abuse and Other Forms of Maltreatment to 12 Month Postoperative Outcomes in Extremely Obese Gastric Bypass Patients’, (2006) 16 Obesity Surgery 454–60; J .E. Wildes, M. A. Kalarchian, M. D. Marcus, M. D. Levine and A. D. Courcoulas, ‘Childhood Maltreatment and Psychiatric Morbidity in Bariatric Surgery Candidates’, (2008) 18 Obesity Surgery 303–13. 74 There have been a few instances of parents being successfully prosecuted for ­neglect in California and Indiana, all of which involved extremely obese children: George,

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of the owners of an obese pet in 2007. This occurred when brothers David and Derek Benton were convicted of the offence of unreasonably causing unnecessary suffering75 to their 11 stone (154 pounds, 69.9 kilograms) pet Labrador, Rusty, by allowing him to become obese. The defendants were conditionally discharged for three years and ordered to pay £250 costs each. Rusty was returned to his owners.76 There have been reported instances of similar prosecutions following this case,77 and this has led some to suggest that the criminal law offers more protection to animals than it does to children, and to calls for parents who overfeed their children causing them to become severely obese to be prosecuted for child cruelty.78 Whilst an analogy may be drawn between pet owners who allow their animals to become corpulent, and parents who fail to prevent their children from becoming obese, this is not a perfect one. Pet owners are usually in control of their animal’s diet. By contrast, parental control over their child’s diet tends to wane as their child ages, particularly when the child starts secondary school.79 It is also questionable whether the current offence of animal cruelty offers greater protection to ­animals than the offence of child cruelty does to children. Specific offences to prosecute acts of animal and child cruelty have long existed in English law, but the relevant statutory provisions do not approach animal and child cruelty in an identical manner. The offences with which the Benton brothers were charged under s. 1(1)(a) of the Protection of Animals Act 1911 were summary offences. Although the courts have not always approached the fault element of this particular offence in a consistent manner, it appears that courts have generally interpreted the word ‘Parents Super-sizing’, 61–2; L. A. Kelley, ‘What Should be the Standards for Intervention Between Parent and Child? The Parental Prosecution for a Young Boy’s Obesity’, (2000–2001) 9 Buffalo Women’s Law Journal 7–11. 75 Section 1(1)(a), Protection of Animals Act 1911, as amended by the Protection of Animals (Amendment) Act 2000. See now the summary offence of ‘unnecessary suffering’, s. 4, Animal Welfare Act 2006 (in force 8 April 2007). 76 M. Horsnell, ‘Pet Owners Left Fearing Prosecution as Obese Rusty Waddles Home’, The Times, 13 January 2007, p. 3. Cf. D. Sapsted, ‘Brothers Convicted over Fat Dog’, Daily Telegraph, 13 January 2007, p. 5. 77 J. Hankins, ‘Animal Obesity Causes Real Suffering’, Guardian Unlimited, 13 May 2009. 78 Bainham, ‘Is the Law a Fat Ass?’; Jeffrys, ‘Child Obesity’. 79 See, e.g., D. Neumark-Sztainer, M. Story, C. Perry and M. A. Casey, ‘Factors Influencing Food Choices of Adolescents: Findings from Focus-group Discussions with Adolescents’, (1999) 99 Journal of the American Dietetic Association 929–34, 937; M. Story, D. Neumark-Sztainer and S. French, ‘Individual and Environmental Influences on Adolescent Eating Behaviors’, (2002) 102 Journal of the American Dietetic Association S40–51; A. J. Rovner, T. R. Nansel, J. Wang and R. J. Iannotti, ‘Foods Sold in School Vending Machines are Associated with Overall Student Dietary Intake’, (2011) 49 Journal of Adolescent Health 13–19.

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‘unreasonably’ as imposing an objective fault element.80 Since the prosecution of the Benton brothers, the Animal Welfare Act 2006 has come into force, bringing into effect a new summary offence of causing ‘unnecessary suffering’, which penalises pet owners or carers whose acts or omissions cause unnecessary suffering to an animal, in circumstances where they ‘knew or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so’.81 In RSPCA v. Gray, it was held that, to prove this offence, the prosecution had to establish ‘that the individual ought reasonably to have known that his or her failure to act would cause an animal to suffer unnecessarily’.82 By contrast, the offence of cruelty to a person under 16, under s. 1 of the Children and Young Persons Act 1933, is a much more serious offence, since the maximum sentence following conviction on indictment is ten years’ imprisonment and/or an unlimited fine.83 The offence requires proof of a subjective fault element and may be regarded as being more difficult to prove, since the prosecution must prove that the relevant act or omission was ‘wilful’,84 which in Attorney-General’s

80 RSPCA v. Hall & Hall (unreported), (1993) November 11, CO/2876, Holland J, p. 7b: ‘a purely objective test’; RSPCA v. Isaacs (unreported), (1993) November 12, CO/721/93. In R (on the application of the RSPCA) v. C [2006] EWHC 1069 (Admin) it was held that, although the test of reasonableness is objective, the justices must consider any explanation offered by the defendant (e.g. why veterinary attention was not sought) when considering whether the defendant acted reasonably or unreasonably. However, in Peterssen v. RSPCA [1993] Crim LR 852, Evans LJ stated that an element of guilty knowledge had to be established by the prosecution: ‘there has to be proved guilty knowledge of the fact that unnecessary suffering would, or might, be caused to the animal in question’, and this approach was approved in Hussey v. RSPCA [2007] EWHC 1083 (Admin). In his commentary to Peterssen, J. C. Smith stated (it is suggested correctly) that Evans LJ was using the term ‘mens rea’ in a somewhat unconventional and confusing sense, ‘to include the “unreasonable conduct” and act of the appellant’, and that the offence was ‘one of negligence’: [1993] Criminal Law Review 852, 853. 81 Animal Welfare Act 2006, s. 4(1)(b). 82 Unreported (2010) Aylesbury Crown Court, Lawtel Transcript, Westlaw. The Administrative Court granted leave to apply for judicial review in respect of this matter, but described the Applicant’s submissions in relation to the Crown Court judge’s interpretation of s. 4 as being ‘perilously close’ to hopeless: Gray v. Crown Court at Aylesbury [2011] EWHC 1504 (Admin), [17]. 83 Definitive sentencing guidelines have been published by the Sentencing Guidelines Council, Overarching Principles: Assaults on Children and Cruelty to a Child (2008) and may be accessed at: http://sentencingcouncil.judiciary.gov.uk/docs/web_Overarching_ principles_assaults_on_children_and_cruelty_to_a_child.pdf. Section 1, Children and Young Persons Act creates a single offence of cruelty which may be committed in a number of different ways: R v. Hayles [1969] 1 QB 364; R v. Beard (1987) 85 Cr. App. R. 295; R v. Young (1997) 97 Cr. App. R. 280. 84 R v. Sheppard [1981] AC 394 (HL), Lord Diplock, 405. Cf. the approach previously adopted, which did not require foresight on the part of the defendant: R v. Senior

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Reference (No.3 of 2003),85 was confirmed as signifying: ‘knowledge or advertence to the consequences, as well as an intent to do an act or refrain from doing an act’.86 The significance of the requirement that the relevant neglect be ‘wilful’ in the context of an allegation that a parent has failed to obtain necessary medical care for their child was explained by Lord Keith in Sheppard as follows: The primary meaning of ‘wilful’ is ‘deliberate’. So a parent who knows that his child needs medical care and deliberately, that is, by conscious decision, refrains from calling a doctor, is guilty under the subsection. As a matter of general principle, recklessness is to be equated with deliberation. A parent who fails to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child’s welfare. He too is guilty of an offence. But a parent who genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty.87

It follows from this that a parent who honestly failed to realise that their child was overweight or obese, or one who, even if they appreciated that their child was overweight or obese, failed to appreciate that the child needed medical care, would not be guilty of the offence of cruelty. Studies indicate that parents tend to underestimate their child’s weight status, with most parents of overweight children identifying them as being of normal weight,88 and obese children frequently being [1899] 1 QB 283; R v. Downes (1875–1876) LR 1 QBD 25; R v. Lowe [1973] QB 702. For a discussion of problems of interpretation in relation to the term ‘wilfully’, see: J. Andrews, ‘Wilfulness: A Lesson in Ambiguity’, (1981) 1 Legal Studies 303, 315–19. 85 [2004] EWCA Crim 868, [2004] 2 Cr. App. R 23. The Court of Appeal stated that there was no material difference between the approach of the majority of the House of Lords in Sheppard and the test of subjective recklessness approved by the House of Lords in R v. G [2003] UKHL 50, [2004] 1 AC 1034. This was confirmed in R v. D [2008] EWCA Crim 2360, Dyson LJ, [23]. 86 [2004] EWCA Crim 868, Pill LJ, [44]. 87 [1981] AC 394, 418. 88 See, e.g., D. Etelson, D. A. Brand, P. A. Patrick and A. Shirali, ‘Childhood Obesity: Do Parents Recognise this Health Risk?’, (2003) 11 Obesity Research 1365–8; S. Carnell, C. Edwards, H. Croher, D. Boniface and J. Wardle, ‘Parental Perceptions of Overweight in 3–5  year olds’, (2005) 29 International Journal of Obesity 353–5; L. L. Parry, G. Netuveli, J. Parry and S. Saxena, ‘A Systematic Review of Parental Perception of Overweight Status in Children’, (2008) 31 Journal of Ambulatory Care Management 253–68; N. Towns and J. D’Auria, ‘Parental Perceptions of Their Child’s Overweight: An Integrative Review of the Literature’, (2009) 24 Journal of Pediatric Nursing 115–30; J. Doolen, T. Alpert and S. K. Miller, ‘Parental Disconnect Between Perceived and Actual Weight Status of Children: a Metasynthesis of the Current Research’, (2009) 21 Journal of the American Academy of Nurse Practitioners 160–66; A. R. Jones, K. N. Parkinson, R. F. Drewett, R. M. Hyland, M. S. Pearce and A. J. Adamson, ‘Parental Perceptions of Weight Status in Children: the Gateshead Millenium Study’, (2011) 35 International Journal of Obesity (London) 953–62; N. Binkin, A. Spinelli, G. Baglio and A. Lamberti, ‘What is Common Becomes

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identified by parents as being merely overweight.89 Whilst this apparent disconnect between parental perception and actuality might be seen as indicating that population-based screening of the adiposity of children is justified,90 and that there is a need to identify more effective methods of educating parents so that they are able to recognise when their child is overweight or obese and requires treatment,91 it also highlights a potential difficulty in proving the fault element of the offence of cruelty to the requisite standard92 in a case where the only complaint made against the parent was that they had allowed their child to become overweight or obese. As far as the conduct element of the offence is concerned, ‘neglect’ includes failing to provide adequate food or medical aid.93 Whether food or medical aid provided is adequate is a matter of fact, to be determined in the light of the child’s state of health at the relevant time,94 so this might potentially encompass the provision of excessive or inappropriate food, although it would still have to be established that the provision was wilful for the offence to be established. It has been held that the offence is aimed at behaviour that amounts to cruelty, and that it is not therefore sufficient merely to show that a defendant exposed a child to a risk.95 The neglect must also be ‘likely’96 to cause the child ‘unnecessary suffering or injury to health’.97 Whilst this would include psychological harm, the suffering or injury would need to be more than a small amount of suffering or anxiety.98 The Crown Prosecution Service has indicated that it regards neglect as a ‘persistent failure to meet the Normal: The Effect of Obesity Prevalence on Maternal Perception’, (2013) 23 Nutrition, Metabolism & Cardiovascular Diseases 410–16. 89 Doolen et al., ‘Parental Disconnect’; Jones et al., ‘Parental Perceptions’; Binkin et al., ‘What is Common’. One study found that only 46 per cent of parents with obese and superobese (with a BMI more than 5 standard deviations above the mean) children described their children as being very overweight: D. Young-Hyman, L. J. Herman, D. L. Scott and D. G. Schlundt, ‘Care Giver Perception of Children’s Obesity-related Health Risk: A Study of African American Families’, (2000) 8 Obesity Research 241–48. 90 Parry et al., ‘A Systematic Review’. 91 Etelson et al., ‘Childhood Obesity’; Towns and D’Auria, ‘Parental Perceptions’; Jones et al., ‘Parental Perceptions’. 92 I.e. beyond reasonable doubt: Miller v. Minister of Pensions [1947] 2 All ER 372, Denning LJ at 373–74. 93 Children and Young Persons Act, s. 1(2)(a). 94 R v. Sheppard [1981] AC 394 (HL), Lord Diplock, 400. 95 R v. Gibbins [1977] Crim LR ­741. 96 ‘Likely’ here extends beyond a mere probability to something which could well happen: R v. Wills [1990] Crim LR 714. 97 Children and Young Persons Act, s. 1(1), which defines injury to health as including ‘any mental derangement’. 98 R v. Whibley (1938) 26 Cr. App. R. 184.

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child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development’,99 which suggests that the prosecution of parents for overfeeding their children is unlikely to be considered save in extreme cases where a serious risk to the health of the obese child and consistent and wilful failure on the part of the parent to heed advice in relation to that child’s diet can be established. A contemplation of criminal child cruelty usually calls to mind what might be regarded as ‘classic’ cases of child cruelty, concerning parents who deliberately abuse their children by beating them and/or starving them, cases such as that of Baby P or Victoria Climbié.100 Most of the reported decisions involving prosecutions under s. 1 of the Children and Young Persons Act 1933 involve either the infliction of physical injury,101 or a failure to obtain medical attention in circumstances where it is evident that a child has been physically injured,102 or the provision of squalid and filthy living conditions.103 The vast majority of parents who over feed their children do not fit within the ‘classic’ child cruelty template. Whilst it might be argued that deliberately overfeeding one’s children ought to be regarded as being on a par with deliberately underfeeding them,104 distinctions of timescale and certainty of outcome may be drawn between the two courses of conduct. If I starve my child, it will die of malnourishment within a fairly short time frame. By contrast, the physical health consequences of obesity caused by overfeeding tend to be cumulative, developing over months and years as obesity increases, and the effects of obesity (including effects upon their mental health) may vary considerably from child to child. Criminal prosecutions for 99 Crown Prosecution Service, Child Abuse: Guidance on Prosecuting Child Abuse (2009), www.cps.gov.uk/legal/p_to_r/prosecuting_cases_of_child_abuse/#annexa, Annex A. 100 See, e.g., R v. Owen (Jason) [2009] EWCA Crim 2259; D. Campbell, S. Jones and D. Brindle, ‘50 Injuries, 60 Visits = Failures that Led to the Death of Baby P’, The Guardian, 12 November 2008, p. 1; Lord Laming, The Victoria Climbié Inquiry Report, (2003) CM 5730, http://webarchive.nationalarchives.gov.uk/20130107105354/ www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/ dh_110711.pdf. See also: R v. Sheppard [1981] AC 394; R v. D [2008] EWCA Crim 2360; R v. W (Emma) [2008] EWCA Crim 2723. 101 E.g., R v. J [2011] EWCA Crim 3021; R v. TE [2011] EWCA Crim 1023; R v. Mohammed [2010] EWCA Crim 2037; R v. KB [2010] EWCA Crim 2339; R v. MG [2010] EWCA Crim 304; R v. Ratnasabapathy [2009] EWCA Crim 1514; R v. Biggs [2009] EWCA Crim 279; R v. Nind [2008] EWCA Crim 1527. 102 E.g., R v. Hewitt [2008] EWCA Crim 1527; R v. JD [2008] EWCA Crim 2360; R v. SD [2008] EWCA Crim 2508; A-G’s Ref (No. 35 of 2005) [2006] EWCA Crim 378; R v. W [2006] EWCA Crim 2723. 103 E.g., R v. O [2011] EWCA Crim 1357; R v. R [2011] EWCA Crim 1969; R v. Robert P [2007] EWCA Crim 1852, [2008] 1 Cr. App. R. (S) 81. 104 In the Matter of Brittany T (2007) 15 Misc 3d 606, ­619.

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parental neglect of a child’s health have traditionally been concerned with children who have been identified as suffering from specific injuries or illnesses which have had a deleterious effect upon their health,105 rather than where they have medical conditions which have the potential to cause future ill health. However, there have been a number of cases in which parents have been convicted of child cruelty and, in cases where the child has died, of manslaughter, upon the basis of their failure to provide their child with necessary medical aid. For example, in the nineteenth-century cases of Downes106 and Senior,107 the defendants were members of a religious sect called ‘The Peculiar People’, which did not believe in calling for medical assistance or giving medicine in cases of illness. In both cases the defendants were convicted of manslaughter on the basis that they had neglected to obtain necessary medical aid, which had caused or accelerated the deaths of their children. There are also numerous reported cases in which parents and/or carers were convicted of neglect for failing to provide adequate medical aid once they became aware that a child for whom they had responsibility had sustained physical injuries.108 Whether a failure to provide medical aid amounts to neglect is a matter of fact, to be decided on the evidence in the case, and a refusal to follow medical advice in relation to treatment may amount to wilful neglect, but does not necessarily do so.109 The reported decision perhaps most akin to the situation of a parent of an obese child failing to heed medical advice is that of Turner,110 where the defendant was convicted of cruelty for wrongfully administering a prescribed drug to her daughter foreseeing that in so doing there was a risk of causing injury to the child’s health. The daughter had been prescribed the drug carbamazepine to treat her seizures. A consultant had advised that this treatment cease and that the daughter be treated with a different drug, and the defendant knew that the treatment was meant to cease in May 2002.111 However, until December 2004, repeat prescriptions for carbamazepine continued to 105 Arani, ‘State Intervention’, p. 888. 106 (1875–1876) LR 1 QBD 25.  107  [1899] 1 QB 283. 108 R v. Hewitt [2008] EWCA Crim 1527; R v. JD [2008] EWCA Crim 2360; R v. SD [2008] EWCA Crim 2508; A-G’s Ref (No.35 of 2005) [2006] EWCA Crim 378; R v. W [2006] EWCA Crim 2723; R v. Bollam [2003] EWCA Crim 2846, [2004] 2 Cr. App. R. 6; R v. CLC [2003] EWCA Crim 437; R v. TMF [2001] EWCA Crim 1001; R v. S [1999] 1 Cr. App. R. (S) 67; R v. Efionayi (1995) 16 Cr. App. R. (S) 380; R v. Young (1993) 97 Cr. App. R. 280; R v. Ace (1990–1991) 12 Cr. App. R. (S) 533; R v. Hayles [1969] 1 QB 364. 109 [1914] 1 KB 216 (refusal to permit surgery to remove adenoids). See also R v. Watson and Watson (1959) 43 Cr App R 65 (failure to seek medical attention for scalded child). 110 [2008] EWCA Crim 272.  111  Ibid. [4], [13].

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be issued by her general practitioner’s practice to the defendant and she continued to administer the drug to her daughter, albeit not regularly, and her daughter became unwell as a result. The Crown accepted that, in administering the drug to her daughter, Turner had not desired to cause any harm to her child, but she was convicted of cruelty. Her conviction was upheld on appeal, on the basis that, given the evidence in the case, ‘the jury would have little difficulty in concluding that the appellant knew that Carbamazepine was no longer prescribed and that in those circumstances it was a wrongful act to administer the drugs’.112 In light of these ‘medical neglect’ cases, it might be possible to construct a prosecution for cruelty in a case in which there was deliberate disregard of medical advice foreseeing that this disregard might make the child ill. For example, if the parent of an overweight or obese child with type 2 diabetes was told not to feed the child sugary foods and fed sweets to the child foreseeing that this might make the child ill, causing her to be ill. A parent who wilfully neglected to provide their obese child with necessary medical care (for example, by failing to secure treatment for sores forming within skin folds) might also be criminally liable.113 Whether the offence of cruelty could be proved in a less extreme case where a parent failed to heed medical advice in respect of his or her obese child is speculative, and ultimately a question to be determined by the tribunal of fact upon the evidence in the case.

Can state intervention be ­justified?

The fact that it might be possible in certain circumstances to prosecute the parents of obese children does not necessarily mean that criminal law ought to intervene in this sphere. The promotion of a public health agenda in the context of a health problem such as childhood obesity inevitably raises the ethical problem of the extent to which it is permissible and desirable for the state to intervene in family life to ensure that the parents of obese children cooperate with medical advice in relation to their children’s diet and exercise regimes.114 We commonly regard the enjoyment of good health as being a key component of a ‘good life’,115 and liberal states today regard it as being part of their responsibilities to use government services and to develop regimes which monitor, protect 112 Ibid. [16]. 113 See, e.g., the American case of Corrigan, discussed in George, ‘Parents Supersizing’ 114 Nuffield Council, Public Health, para. 2.13; S. Holm, ‘Obesity Interventions and Ethics’, (2007) 8 (Supp1) Obesity Reviews 207–10, 209. 115 Nuffield Council, Public Health, para. 2.11.

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and promote the health of children. Examples of such policies may be found in the National Child Measurement Programme and Every Child Matters: Change for Children programme (which emphasises early intervention to protect children and ensure that they fulfil their potential).116 However, as Parton has observed, such programmes have the potential to lead to an intrusive ‘preventive-surveillance state’, which increasingly intervenes at an early stage when problems arise in relation to children.117 In a society in which parents are informed of the health risks of child obesity and ‘nudged’ towards making healthy decisions about their child’s diet and exercise regimes, it may become increasingly easy to regard a parent who fails to heed advice or take up opportunities offered to control their child’s weight as being responsible for any adverse health consequences.118 Mill’s harm principle may be regarded as usually providing ‘the strongest justification for public health interventions’.119 It provides that: ‘The only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’120 It is a principle which also plays a key role in the consideration of whether the criminalisation of conduct is justified. As Andrew Ashworth has noted, analyses of the principles justifying criminalisation commonly begin by considering Mill’s harm principle, as a principle limiting the use of the criminal law.121 However, in cases where children become obese ‘as a direct result of their parents’ preferences for food and exercise’,122 the harm principle may be used to justify state interventions, based upon the vulnerability of children and the need to reduce the health risks imposed by parents on their children.123 Parents, even loving and well-meaning ones, do not always act in the best interests of their children,124 and aspects of parental care may be 116 www.ic.nhs.uk/ncmp. 117 N. Parton, ‘The “Change for Children” Programme in England: Towards the “Preventive-Surveillance State”’, (2008) 35 Journal of Law and Society 166–87. 118 M. Verweij, ‘Preventing Disease’, in R. E. Ashcroft, A. Dawson, H. Draper and J. R. McMillan (eds)., Principles of Health Care Ethics (Chichester, John Wiley & Sons, 2007), 557–62, p. 560; P. Skrabanek, The Death of Humane Medicine and the Rise of Coercive Medicine (Bury St Edmunds, St Edmundsbury Press, 1994). 119 Nuffield Council, Public Health, para. 2.44. 120 J. S. Mill, On Liberty (1859), ch.1, para. 9. 121 A. Ashworth, Principles of Criminal Law, 6th edn (Oxford University Press, 2009), p. 27. 122 Nuffield Council, Public Health, para. 5.39.  123  Ibid. 124 Cf. S. Holm, ‘Obesity Interventions and Ethics’, 207–10, 209; R. Ashcroft, ‘Smoking, Health and Ethics’, in A. Dawson, Public Health Ethics (Cambridge University Press, 2011), 85–99, p. 95.

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seen as causing harm or a risk of harm to the child’s health: for example, smoking in the home; failing to have one’s child immunised; allowing them to spend long periods watching television or playing computer games; and feeding them calorie-dense fatty and sugary foods. If the harm principle were the sole or dominating consideration in relation to the issue of whether parental conduct towards their children should be criminalised, there is scope for the principle to be used to justify increasingly intrusive state intervention in family life in order to promote and enforce a public health agenda.125 In this context, I suggest that a minimalist approach to criminalisation is required to ensure that adequate respect is accorded to human rights, in particular to rights to privacy, and to protect parents and guardians from unjustified state punishment.126 According to this minimalist approach, the imposition of criminal punishment is regarded as being ‘society’s most intrusive and degrading sanction’,127 and therefore the criminal law should be ‘used only as a last resort or for the most reprehensible types of ­w rongdoing’.128 As we have seen, in the case of parents who allow their children to become severely obese and then fail to cooperate with medical practitioners to take steps to limit the risks that obesity poses to health, local authorities have extensive powers to investigate and intervene in cases where parental failure harms children, including the option of applying for a care order to remove the child from parental care as a last resort. Given these powers, it is suggested that the prosecution of the parents of obese children for cruelty is not warranted, save in severe cases where culpable parental neglect can be established. It may even be argued that the use of the criminal law as a preventive tool in relation to the complex problem of child obesity has the potential

125 W. Wilson, Central Issues in Criminal Theory (Oxford, Hart Publishing, 2002), p. 22. Cf. Jareborg’s account of the ‘Offensive Approach’ to criminal law policy, which ‘regards the criminal justice system as an at least potential repertoire of methods for solution of social or societal problems. Prevention of harm or wrongdoing is the dominating perspective.’: N. Jareborg, ‘What Kind of Criminal Law Do We Want? On Defensive and Offensive Criminal Law Policy’, in Scraps of Penal Theory (Uppsala, Iustus Förlag, 2002), p. 97. 126 D. Husak, Overcriminalization (Oxford University Press, 2008), pp. 95–101. 127 Jareborg, ‘What Kind of Criminal Law’, p. 95. Cf. A. Ashworth, ‘Is the Criminal Law a Lost Cause?’, (2000) 116 Law Quarterly Review 225; A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford, Hart Publishing, 2008), pp. 143–45; Husak, Overcriminalization, pp.  153–58; N. Jareborg, ‘Criminalisation as a Last Resort (Ultima Ratio)’, (2004–2005) 2 Ohio State Journal of Criminal Law 521–34. 128 Ibid. Cf. J. Bentham, An Introduction to the Principles of Morals and Legislation (1789), ch. 13, principle 3, in Selected Writings on Utilitarianism (Ware, Wordsworth Editions Limited, 2001).

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to have a negative effect upon public health, since the fear of criminalisation might deter parents from seeking help or cooperating fully with health professionals.129 In the vast majority of cases, the parents of obese children need advice and support to help them help their child to lose weight, not to be pursued by the ‘fat’ police. 129 L. O. Gostin, Public Health Law: Power, Duty, Restraint (University of California Press, 2000), pp. 232–34.

7

Disease transmission, liability and criminal law James Chalmers



Introduction

In this chapter, I intend to do the following. I will show briefly how the criminal law has had relatively little to say about public health,1 but how public health law has itself had little to say about diseases which are transmitted only through close contact, where even the most reckless individual is likely to pose risks only to other individuals rather than to the public more generally. My focus here is on sexually transmitted infections, and I will show how in the absence of specific public health regulation, room has been left for the criminal law to intervene. There are two distinct routes in which such intervention can happen. One is by means of prohibitions which are targeted specifically at the spread of disease. The other is by the application of more general criminal law provisions, such as offences against the person or sexual offences. My thesis here is that the choice of route has a significant impact on whether criminalisation is likely to become an accepted part of the criminal law or otherwise. I explain how the harm principle, the most commonly cited restraint on criminalisation, operates differently in the two cases. Where the first route has been taken, campaigners against criminalisation have been able to point to the relative ineffectiveness of criminal prohibitions in order to justify their repeal (or prevent their enactment). However, when more general laws are applied, such arguments have less traction. The question becomes one of whether the general rule is compatible with the harm principle, not whether any 1 That might, of course, depend on the meaning one attributes to the term ‘public health’. For example, the Acheson Report adopted a ‘wide’ definition of public health as ‘the science and art of preventing disease, prolonging life and promoting health through organised efforts of society’ (Public Health in England: The Report of the Committee of Inquiry into the Future of the Public Health Function, Cm 289 (1988) para 1.3). On that basis, much of the law of offences against the person might be considered to be in some way ‘public health law’, but I am concerned here with the prevention of disease and use the term ‘public health’ in this somewhat narrower sense for convenience.

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specific application of it is. That is not a battle which opponents of the criminalisation of disease transmission are likely either to want or be equipped to fight. My analysis here is concerned with the common law tradition generally, drawing particularly but not exclusively on English law. This raises more general questions about the scope of the harm principle, and in particular the appropriate level of specificity in defining ‘harm’ for these purposes. I seek here simply to sketch out the boundaries of that particular problem, rather than to resolve it.

Criminal law and the transmission of disease: a brief history

The criminal law has traditionally had relatively little to say in relation to highly contagious diseases, such as might be spread through casual contact. In principle, a person who exposed the public at large to the risk of infection might be prosecuted for an offence of public nuisance. Such cases have included a mother who carried her child, infected with smallpox, along a public highway (resulting in the infection and death of two other children)2 and a doctor who, despite knowing he had Hepatitis B, undertook invasive surgery over a prolonged period, thereby putting his patients at risk.3 For obvious reasons, criminal law is not an attractive tool when it comes to the control of contagious disease. Coercive measures may be required in order to deal with an individual who presents a risk to the public health, but the process of criminal prosecution is unlikely to be helpful. Until recently, public health legislation in the United Kingdom did contain a clutch of offences prohibiting persons with infectious diseases from engaging in certain activities – such as taking out a book from a public or circulating library,4 placing matter known to have been exposed to infection in a dustbin or ash pit without disinfection,5 or using a public conveyance.6 However, as the language of those offences might suggest, they had obtained the status of historical 2 R v. Vantandillo (1815) 4 M&S 73; 105 ER ­762. 3 R v. Gaud, September 1994, unreported. See Gaud v. Leeds Health Authority 1999 BMLR 105. The prosecution alleged that ‘some twenty patients’ had contracted Hepatitis B from Dr Gaud, but this could not be proven: see L. Delany, ‘Health Care in the Courts’, (1995) 3 Health Care Analysis 140. 4 Public Health (Control of Disease) Act 1984, s. 25. 5 Public Health (Control of Disease) Act 1984, s. 26. 6 Public Health (Control of Disease) Act 1984, s. 33.

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curiosity, despite the occasional attempt to cite them as justifying by analogy offences of disease transmission.7 While modern public health law8 is replete with criminal prohibitions, these tend to be secondary in nature, operating to reinforce public health law rather than set out its terms. Rather than proscribing specific conduct, therefore, they criminalise the failure to comply with public health orders, or obstruction thereof.9 Until recently, many of the coercive measures available under public health law in the United Kingdom operated by reference to a closed list of 28 ‘notifiable diseases’.10 For the most part, this did not include sexually transmitted infections,11 which were often regarded as presenting rather distinct problems from those at which public health law was addressed.12 More recently, UK public health law has become framed by way of an ‘all hazards’ approach,13 which means that coercive powers may be triggered simply by proof of a risk to health, without the need to frame this by reference to a specified disease (or even to disease at all).14 Although in theory this opens the door to its provisions being applied to diseases such as sexually transmitted infection, the legislation is still generally inapt to cover such cases. The Scottish legislation, for example, requires evidence of a risk to public health (not just to the health of an individual) in order for coercive powers to be 7 See J. R. Spencer, ‘Liability for Reckless Infection  – Part  1’, (2004) 154 New Law Journal 384. 8 The relevant part (Part 2) of the 1984 Act has been supplanted in Scotland by the Public Health (Scotland) Act 2008 and in England and Wales by the Health and Social Care Act 2008, which inserted a new Part 2A (consisting of ss. 45A-45T) into the 1984 Act. 9 See, e.g., Public Health (Control of Disease) Act 1984, s. 45O; Public Health (Scotland) Act 2008, s. 69. 10 Five of these were specified in the Public Health (Control of Disease) Act 1984, with a further 25 being listed by the Public Health (Infectious Diseases) Regulations 1988 (SI 1998 No. 1546). The effect of the 1988 Regulations was that, in respect of each disease which they listed, certain specified provisions  – but not all provisions  – of the 1984 Act were thereby applied in respect of them. AIDS (not HIV) was listed in the 1988 regulations but, somewhat confusingly, although it therefore became a ‘notifiable disease’, the requirement of notification under s. 11 of the 1984 Act was, uniquely, not made applicable to it. 11 See J. Chalmers, Legal Responses to HIV and AIDS (Oxford, Hart Publishing, 2008), p. 3. 12 See, e.g., S. Monaghan, The State of Communicable Disease Law (London, Nuffield Trust, 2002), p. 1. 13 See Department of Health, Review of Parts II, V and VI of the Public Health (Control of Disease) Act 1984: A Consultation (London, Department of Health, 2007), paras 2.12–2.13. 14 See ibid para. 2.13 (discussing contamination by way of chemicals and radiation).

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triggered.15 Coercive powers can be triggered under the English legislation because of a risk ‘to others’16 rather than to the public health more generally, but official guidance makes it clear that these powers are not envisaged for use in respect of sexually transmitted infections, except perhaps in exceptional circumstances.17 If public health law is not to be used in such cases, what role might the criminal law play? Offences such as public nuisance are not readily applicable in respect of infectious diseases which can only be transmitted through close contact. They might be pressed into service, as happened in Canada where the offence of common nuisance was used to prosecute one man who donated blood knowing he was HIVpositive,18 and another who had intercourse with a number of people despite knowing of his infection.19 Such prosecutions present obvious difficulties. Given screening processes, it is doubtful that a donation of HIV-positive blood in fact presents the risk required for the offence, 20 and nor is it clear that unprotected sexual intercourse, even with multiple partners, can really be said to endanger the public in the way that a nuisance offence requires.21 However, other, more general criminal law rules have been pressed into service with more success.22 In English law, for example, the offence of inflicting grievous bodily harm23 has been used to prosecute individuals who have recklessly transmitted HIV to their sexual partners. In Canadian law, the courts have held that non-disclosure of a person’s HIV-positive status can invalidate consent to sexual intercourse, thus rendering the non-discloser guilty of sexual assault.24 I will return to the English development below, but first it is necessary

15 The difference between public health and the health of an individual is made clear by s. 1 of the Public Health (Scotland) Act 2008, which defines ‘protecting public health’ as ‘the protection of the community (or any part of the community) from’ infectious diseases, contamination or ‘other such hazards’. 16 Public Health (Control of Disease) Act 1985, s. 45G(1). Despite the plural form, this would necessarily include the singular: Interpretation Act 1978, s. 6(c). 17 Department of Health, Health Protection Legislation (England) Guidance (London, Department of Health, 2010), 81. 18 R v. Thornton [1993] 2 SCR 445. 19 R v. Summer (1989) 8 WCB (2d) 178. 20 See S. Bronitt, ‘Donating HIV-infected Blood: a Public Nuisance?’, (1994) 1 Journal of Law and Medicine 245. 21 See R v. Ssenyonga (1992) 73 CCC (3d) 216, where unprotected sexual intercourse with three complainants was held insufficient. 22 By success I mean only that the application of the criminal law in these contexts has become established. I take no view here on the desirability of this development. 23 Offences Against the Person Act 1861, s. 20. See R v. Dica [2004] QB 1257. 24 R v. Cuerrier [1998] 2 SCR 371.

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to turn to the harm principle and explore how it operates as a restraint on criminalisation.

The harm principle: a ­primer

The two most commonly quoted formulations of the harm principle are as follows: the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. 25 It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no other means that is equally effective at no greater cost to other values.26

These two formulations are different in nature. As Duff notes, Mill’s formulation is exclusionary: criminalisation (or other coercive powers) simply cannot be exercised unless it is satisfied.27 Feinberg’s, by contrast, is more difficult to characterise. It is not itself exclusionary, being one of ten alternative possible ‘liberty-limiting principles’ which he identifies.28 Duff describes it as permissive,29 but there are problems with this characterisation, because it seems wrong to say that when Feinberg’s condition is satisfied penal legislation is permitted or justified. This can be demonstrated by examining Bayles’ early criticism of Feinberg’s formulation: Suppose nonpenal legislation would be slightly less effective than penal legislation in preventing harm, but its cost to other values would be far less. In short, the net value (avoided harm less cost) of nonpenal legislation would be significantly greater than that of penal legislation. By Feinberg’s formulation of the harm principle, penal legislation would be justified. However, a preference for the nonpenal legislation is not irrational, and the penal legislation can hardly be described as ‘necessary’.30

But this simply does not follow: all that Feinberg’s formulation tells us is that there would be a ‘good reason’ in favour of criminalisation in Bayles’ scenario. That good reason must be capable of being outweighed

25 J. S. Mill, On Liberty (1856), ch. ­1. 26 J. Feinberg, Harm to Others (Oxford University Press, 1984), p. 26. 27 R. A. Duff, Answering for Crime (Oxford, Hart Publishing, 2007), p. 123. 28 Feinberg, Harm to Others, pp. 26–27. 29 Duff, Answering for Crime, p. 123. 30 M. D. Bayles, ‘Harm to Others’, (1985) 4 Law and Philosophy 423, p. ­424.

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by others31 – here, by the principle of minimum criminalisation32 – and so criminalisation would not be justified in such a case. Given that there must be a good reason for criminalisation, Feinberg’s formulation might be – rather cumbersomely – characterised as an alternative necessary condition for criminalisation. Taken together, his libertylimiting principles (or, at least, as many of them as we are prepared to accept) are exclusionary in the same way as Mill’s harm principle.

Criminalising harm or preventing harm?

Neither Mill’s nor Feinberg’s formulation states that behaviour must itself be harmful in order to be criminally punishable. If that were the case, large tracts of the criminal law such as inchoate crimes and preparatory offences might be vulnerable to attack, unless we were prepared to adopt a very broad concept of ‘harm’ encompassing the damage to our sense of security resulting from the knowledge that persons were planning to commit criminal offences.33 But there are good reasons to be cautious of such an approach, not least that it might prevent the harm principle from acting as a meaningful restraint on criminalisation. If such an abstract notion of harm were sufficient to satisfy the principle, then Devlin’s claim that ‘[s]ociety is entitled to protect itself from dangers, whether from within or without’ to avoid ‘disintegration’34 would start to look like an application of Mill’s On Liberty rather than an attack on it. How, then, are such offences to be reconciled with the harm ­principle? Two obvious options avoid the problem by way of (re)definition: either (as suggested by Duff) assert that the principle actually ‘permits the criminalisation of conduct that causes or creates a risk of harm’,35 or alternatively (as suggested by Finkelstein) argue that a risk can itself be a harm.36 Both approaches might have difficulty in accommodating some 31 See, e.g., A. Wertheimer, Consent to Sexual Relations (Cambridge University Press, 2003), p.  131, who argues that criminalisation of adultery would be compatible with the harm principle (at least the formulation offered by Gardner and Shute, discussed below) but considers that there are nonetheless ‘probably good reasons not to’ criminalise it. 32 A. Ashworth and J. Horder, Principles of Criminal Law, 7th edn (Oxford University Press, 2013), p. 52. 33 I have in mind security in the sense envisaged  – albeit in a different context  – by J. Glover, Causing Death and Saving Lives (Harmondsworth, Penguin, 1977), pp. 99–100. 34 P. Devlin, The Enforcement of Morals (London, Oxford University Press, 1965), p. 13. 35 Duff, Answering for Crime, p. ­126. 36 C. Finkelstein, ‘Is Risk a Harm?’, (2003) 151 University of Pennsylvania Law Review 963.

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offences – preparatory ones in particular – but I do not intend to explore that point further here.37 An alternative is to say that both approaches rest on a false premise: that is, that the harm principle means that harm is at least ‘a necessary condition for liability’38 under the criminal law. That is, effectively, the approach taken by Gardner and Shute in an influential paper centred on what the authors term a ‘pure rape’, where an unconscious victim is ‘forever oblivious to the fact that she was raped’, so that her life is entirely unaffected by the incident, by a rapist who tells no one what he did and is run over by a bus immediately after the incident.39 Criminalisation of the ‘pure rape’, they argue, is consistent with the harm principle: It is no objection under the harm principle that a harmless action was criminalized, nor even that an action with no tendency to cause harm was criminalized. It is enough to meet the demands of the harm principle that, if the action were not criminalized, that would be harmful. This test is passed by the pure case of rape with flying colours. If the act in this case were not criminalized then, assuming at least partial efficacy on the part of the law, people’s rights to sexual autonomy would more often be violated … For the purposes of the harm principle that is all that is needed. There is no need to show, in addition, that a given rape caused, or was likely to cause, harm.40

Given that both Mill and Feinberg’s concern is the prevention (or alternatively, elimination/reduction) of harm there is much to be said for this formulation of the principle.41 Assuming it is correct, it raises a problem which is not much attended to in the literature, and which is particularly evident in the criminalisation of HIV transmission in the UK.

37 See Duff, Answering for Crime, ch. 7. 38 Finkelstein, ‘Is Risk a Harm?’, p. 964 (emphasis omitted). 39 J. Gardner and S. Shute, ‘The Wrongness of Rape’, in J. Horder (ed.), Oxford Essays in Jurisprudence: Fourth Series (Oxford University Press, 2000), 193–217, p.  196. Gardner and Shute add this last element ‘for complete insulation’, and one might wonder whether it renders the example worthless. ‘Complete insulation’ is important for their case, because it heads off any argument that there is a risk of future harm or that the rapist’s actions cause some form of indirect harm by means of the fear created in third parties. But at the same time, ‘completely insulated’ behaviour cannot be criminalised in any meaningful sense, because by definition it comes to no-one’s knowledge and so is incapable of being prosecuted or punished. The ‘pure rape’ may be wrong, but it is factually immune from criminalisation. 40 Gardner and Shute, ‘The Wrongness of Rape’, p. 216. 41 See, however, Duff, Answering for Crime, p. 129, n. 26: ‘… this distorts the reasons for criminalising rape in the same way as attempt to portray it as a wrong against or harm to “the public” … Rape is indeed a kind of wrong that people should not have to fear and the fear of which is destructive of various goods: but what makes it worth

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The harm principle and the level of specificity

Much debate on the harm principle has focused on just what is meant by ‘harm’: how do we determine whether or not a particular event counts as ‘harm’?42 But that assumes we can assess this at the level of the specific harm done by D, which is the wrong approach if we accept Gardner and Shute’s formulation of the harm principle. On that approach, the basis for analysis is the harm which the law seeks to prevent. That harm, however, could be characterised in a variety of different ways. In the context of the transmission of HIV, what is the ‘harm’ for these purposes? Is it – to take some of the obvious alternatives – ‘injury to a person’; ‘serious injury to a person’; ‘serious illness, infection or disease’; ‘infection with a sexually transmitted disease’; ‘infection with HIV’; or ‘infection with HIV through sexual intercourse’? All of these are harms which the criminal law could legitimately seek to prevent, and all of them are harms which could reasonably be the basis for the actus reus of an offence, given that the criminal law does not stipulate any particular subdivision of wrongdoing.43 If a legal system were to prohibit the reckless transmission of HIV, then, does the harm principle require that the prohibition will prevent the transmission of HIV? If there were evidence that no such result would obtain, could it effectively adopt the same rule by way of a general prohibition on recklessly injuring persons, provided that such a measure would reduce the incidence of injury generally? I am not sure, at this stage, how this question might be answered. Instead, my ­concern here is to show that the question matters, by arguing that it explains the way in which the transmission of HIV has been criminalised in the United Kingdom, particularly under English law. .



The Offences Against the Person Act 1861

A useful example of the varying degrees of specificity with which the criminal law might identify prohibited harms is provided by the Offences Against the Person Act 1861. This is itself the statute under which prosecutions for the reckless transmission of HIV are now brought. criminalising is its wrongfulness.’ Although Gardner and Shute do advert to fear of rape in their discussion following the passage I have quoted, it does not seem to be a necessary part of their argument; indeed, they argue that ‘the wrongness of rape is independent of, and prior to’ the harm of fear: Gardner and Shute, ‘The Wrongness of Rape’, p. 216, n. 41. 42 See Duff, Answering for Crime, pp. 126–35. 43 See generally J. Chalmers and F. Leverick, ‘Fair Labelling in Criminal Law’, (2008) 71 Modern Law Review 217.

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As the Act stands – many of the original provisions have been repealed or amended  – it is a curious mix of the excessively general and the absurdly specific. So, for example, one failing of the Act is that it fails ‘to distinguish adequately between serious and minor injury’,44 which is surprising for a statute containing such specific offences as obstructing or assaulting a clergyman or other minister in the discharge of his duties,45 assaulting magistrates preserving wrecks,46 and assaults with intent to obstruct the sale or free passage of grain.47 Section 20 of the 1861 Act makes it an offence to recklessly ‘inflict’ grievous bodily harm upon another person, but infliction was given a restricted meaning until relatively recently. In R v. Clarence,48 where C – knowing that he was infected with gonorrhoea – had sexual intercourse with his wife without telling her this fact, transmitting the infection to her, nine of the 13 judges of the Queen’s Bench Division quashed his conviction under section 20.49 For the majority, Stephen J said that there was simply no infliction of bodily harm: ‘[t]he words appear to me to mean the direct causing of some grievous injury to the body itself with a weapon, as by a cut with a knife, or without a weapon as by a blow with the fist, or pushing a person down.’50 The usual account of developments thereafter is a simple one: no one was convicted under English law51 for the sexual transmission of disease for well over a century after Clarence, until the trial of Mohammed Dica in October 2003.52 That conviction was possible because of the 1997 decision in R v. Ireland,53 departing from Stephen J’s interpretation of ‘inflict’ in Clarence and effectively equating that word with ‘cause’. That 44 I. Dennis, ‘The Critical Condition of Criminal Law’, (1997) 50 Current Legal Problems 213, p. 219. 45 s. 36.  46  s. 37.  47  s. 39. 48 (1888) 22 QBD 23. 49 A conviction for assault occasioning actual bodily harm under section 47 was also quashed, on the basis that C’s non-disclosure of his condition did not invalidate his wife’s consent to sexual intercourse. This position remains unchanged today: see, most recently, R v. B [2007] 1 WLR 1567. 50 Clarence, at 41. 51 The first conviction under Scots law occurred in February 2001: HM Advocate v. Kelly, High Court at Glasgow, unreported. See J. Chalmers, ‘Sexually Transmitted Diseases and the Criminal Law’, (2001) Juridical Review 259. 52 Dica’s two convictions were quashed on appeal on the basis of a misdirection by the trial judge, who had wrongly told the jury that consent to the risk of HIV infection (that is, consent to unprotected sexual intercourse in the specific knowledge that the defendant was HIV-positive) could not be a defence to the charges against him: R v. Dica [2004] QB 1257. After a fourth trial (the second having been abandoned for unspecified legal reasons, and the third abandoned after the jury failed to reach a verdict), Dica was convicted in March 2005 of a single count under section 20 of the 1861 Act. 53 [1998] AC 147.

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case had nothing to do with the transmission of disease – Ireland had caused psychiatric injury to a number of women by a series of silent telephone calls – but it opened the door to such prosecutions. Inevitably, such prosecutions have taken those working in the HIV sector by surprise, and the question ‘why now?’ is a common one. There is a simple answer to that.54 Prosecutions do not occur without two conditions being satisfied: first, prosecutors willing to bring a case, and second, a law which allows them to do just that. The first condition was almost certainly satisfied,55 but until the decision in Ireland the second was not. On that account, criminalisation has happened purely through contingency and accident. But the better answer is that this is the wrong question to be asking. Criminalisation of the sexual transmission of disease is hardly, in comparative perspective, an unusual phenomenon, and the UK is distinctive in not having had any such law until recently.56 Instead of ‘why now?’, the real question is this: ‘why not earlier?’

The legacy of the Contagious Diseases ­Acts

The UK had, in fact, experimented with coercive measures aimed at reducing the incidence of sexually transmitted infections some time earlier, via the Contagious Diseases Acts of the 1860s. The Acts provided that in specified garrison towns and ports, the police should have the power to detain women suspected of prostitution and enforce treatment on those found to be infected. The resulting struggle between the abolitionists (led by Josephine Butler and the Ladies’ National Association) and extensionists (those who wanted to see the Acts extended to the civilian population) has been extensively documented elsewhere.57 54 J. Chalmers, ‘HIV/AIDS and Criminal Law in England and Wales’, (2005) 15 Interights Bulletin 60. 55 At the very least, it is likely that there would have been a prosecution in one high-profile case in Birmingham in the early 1990s, but for the fact that the police and Crown Prosecution Service (CPS) considered themselves powerless to take any action. The case led to a number of Parliamentary questions, where the Prime Minister, Home Secretary and Secretary of State for Health all reiterated that the government did not believe that legislation should be enacted to deal with such cases. See HC Debs 2 July 1992 col 960, 9 July 1992 col 277w and 15 December 1992 col 102w. 56 See the survey of European jurisdictions carried out by the Global Network of People Living with HIV/AIDS Europe and the Terrence Higgins Trust: Criminalisation of HIV Transmission in Europe (2005) (www.gnpplus.net/criminalisation/rapidscan. pdf). 57 P. McHugh, Prostitution and Victorian Social Reform (London, Croom Helm, 1980); J. Walkowitz, Prostitution and Victorian Society: Women, Class and the State (Cambridge University Press, 1980).

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What is important for present purposes is the extent to which the harm principle loomed large in these debates. Evidence was marshalled on both sides purporting to establish that the Acts  – the operation of which was subject to a degree of statistical analysis remarkable for the nineteenth century  – had or had not been effective in stemming the flow of venereal disease.58 Mill himself gave evidence to the Royal Commission on the Contagious Diseases Acts 1871, in opposition to the legislation. Consistent with the harm principle,59 he rejected the contention that the Acts could be legitimised by any evidence the extensionists might marshal on the incidence of venereal disease. That was not enough given the invasion into liberty which they represented: If we are to enter into one part of the question only, the degree of efficacy of the Acts for their professed purpose, of course any increased efficacy furnishes an additional argument for the Acts. But no argument that can be produced of that kind, or I believe ever has been produced, would seem to me to overbear the very strong arguments of other kinds against the operation of such Acts; therefore my opinion would not be favourable to the Acts, supposing the circumstances you mention to be finally confirmed.60

The Acts were in due course repealed, and when the Royal Commission on Venereal Diseases was appointed in 1913 to ‘inquire into the prevalence of venereal diseases in the United Kingdom, their effects upon the health of the community, and the means by which those effects can be alleviated or prevented’, it was made expressly clear to the Commission that ‘no return to the policy or provisions of the Contagious Diseases Acts … is to be regarded as falling within the scope of the inquiry’.61 The Commission ignored the possibility of criminalisation entirely  – perhaps either because it felt this was absolutely outside its remit, or alternatively because it would have interfered with the Commissioners’ desire to publish a unanimous report.62 58 See Walkowitz, Prostitution and Victorian Society, chs 4–5. 59 Although exactly why his position was consistent with the harm principle requires some elucidation. See J. Waldron, ‘Mill on Liberty and on the Contagious Diseases Acts’, in N. Urbinati and A. Zakaras (eds.), J. S. Mill’s Political Thought: A Bicentennial Reassessment (Cambridge University Press, 2006), 11–42. 60 Mill’s evidence is reprinted as ‘J. S. Mill, The Contagious Diseases Acts 1871’, in J. M. Robson (ed.), Essays on Equality, Law, and Education (Collected Works of John Stuart Mill), 33 vols. (Toronto, University of Toronto Press, 1984), vol. XXI, 349. This quote is found at pp. 364–65. 61 Royal Commission on Venereal Diseases, Final Report of the Commissioners, Cd 8189 (1916), p. 1. 62 To this end, the Commission suppressed evidence on the efficacy of prophylactic methods: see R. Davenport-Hines, Sex, Death and Punishment: Attitudes to Sex and Sexuality in Britain Since the Renaissance (London, Collins, 1990), pp.  223–24. In the words of one Commissioner, ‘the offer to make unchastity safe was a blow at the

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The Home Secretary did, in fact, endorse the criminalisation of the wilful transmission of venereal disease after the Commission’s report had been published (and was supported by one prominent member of the Commission).63 A proposal for an exposure offence made it into the Criminal Law Amendment Bill of 1918, but the Bill encountered considerable controversy in respect of other provisions, fell, and was not resurrected in the next Parliament. Any enthusiasm for such legislation was severely dented as a result of other events in 1918. Increasingly concerned about venereal disease (historically an enormous problem for armies in wartime), the government had made an order under the Defence of the Realm legislation (reg 40D) in the following terms in March 1918: No woman who is suffering from venereal disease in a communicable form shall have sexual intercourse with any member of His Majesty’s forces or solicit or invite any member of His Majesty’s forces to have sexual intercourse with her. If any woman acts in contravention of this regulation she shall be guilty of a summary offence against these regulations. A woman charged with an offence under this regulation shall if she so requires be remanded for a period (not less than a week) for the purpose of such medical examination as may be requisite for ascertaining whether she is suffering from such a disease as aforesaid.

The Ladies’ National Association remained active, now as the Association for Moral and Social Hygiene (AMSH), and promptly mobilised support against Regulation 40D  – which they argued was nothing less than a return to the Contagious Diseases Acts. Alison Neilans, the Association’s Secretary and an experienced campaigner who had gone to jail as a suffragette, lobbied the Home Office unceasingly, mobilising support from a combination of organisations with over a million members who were prepared to lend their weight to AMSH’s campaign.64 At AMSH’s instigation, awkward questions were asked in Parliament – particularly about the clear gender bias in the regulation – and the Home Office eventually agreed to set up a Committee to review 40D, which started taking evidence in November 1918. The task appears not to have been viewed with much enthusiasm, and on the penultimate day of hearings, the Committee seized on the Armistice – and the likely nation’s morals’ (M. Scharlieb, Reminiscences (London, Williams & Norgate, 1924), p. 222). Cf. G. A. Reid, Prevention of Venereal Disease (London, William Heinemann, 1920), p. 113 (‘The fanatic is always unscrupulous, always arrogant, always stupid. What hope was there of permanently concealing the facts from the public?’). 63 M. Morris, The Nation’s Health: The Stamping Out of Venereal Disease (London, Cassell, 1917), pp. 121–22. 64 See file NA/HO45/10893/359931 in the National ­A rchives.

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abrogation of many of the Defence of the Realm Regulations – to abandon its proceedings mid-session. All this merely served to reinforce the presumption against such legislation, and the attempts of various local councils to achieve the same result by local Acts was blocked at all times by the Association’s efforts. (On one occasion, Bradford managed to evade the scrutiny of the Association, who failed to notice the clause in their proposed local Act, but it is telling that Bradford abandoned the experiment after a short period.) AMSH was unable to prevent the government from resorting to such tactics during the Second World War, save that Regulation 33B was notionally gender neutral, in that it created an offence – applying to both men and women – of failure to attend a venereal diseases clinic if named as a contact by two different persons. In point of fact, it seems clear that no men were ever prosecuted under the regulation, although that was almost certainly more a consequence of the medical incidences of venereal infection rather than of direct gender bias in its application.65 Once again, the fight over 33B simply served to resurrect the spectre of the Contagious Diseases Acts and remind legislators and doctors of the perceived demerits of such a course. Few were prepared to argue that such measures were demonstrably effective, and when two ­venereologists suggested in the pages of the Lancet in 1967 that some variant of Regulation 33B be re-enacted,66 the legacy of the Contagious Diseases Acts was immediately deployed as a weapon against them in furious responses,67 just as it was later played in aid against proposals for coercive responses to AIDS in the 1980s.68 65 As subsequent research was to demonstrate, men generally attended VD clinics because of symptoms, and women because of a ‘contact slip’ from a sexual partner: J. D. H. Mahony, ‘Analysis of Attendance Motivation in a Belfast Venereal Diseases Clinic’, (1972) 48 British Journal of Venereal Diseases 71. The more frequently asymptomatic nature of infection in women meant that women were less likely than men to receive treatment if not named as a sexual contact, leading in turn to fears of undiagnosed ‘reservoirs of infection’: see e.g. S. M. Laird, ‘Some Current Aspects of the Epidemiology of Gonorrhoea’, (1963) 39 British Journal of Venereal Diseases 101. 66 W. V. Macfarlane and R. C. M. Pearson, ‘The Control of Venereal Disease’ (Letter), (1967) Lancet i, 158. For an earlier attempt to propose Parliamentary legislation to similar effect, see HC Debs, 3 July 1962, cols 291–94. Drs Macfarlane and Pearson did receive support from another venerologist: R. S. Morton, ‘The Control of Venereal Disease’ (Letter), (1967) Lancet i, 221, but cf. the same author’s Sexual Freedom and Venereal Disease (London, Owen, 1971), which makes little reference to such measures. 67 See D. J. M. Wright, ‘The Control of Venereal Disease’ (Letter), (1967) Lancet, i, 221; E. Rees, ‘The Control of Venereal Disease’ (Letter), (1967) Lancet i, 328–29. The correspondence is discussed in J. Chalmers, Legal Responses to HIV and AIDS (Oxford, Hart Publishing, 2008), pp. 131–32. 68 R. Porter, ‘History Says No to the Policeman’s Response to AIDS’, (1986) 293 British Medical Journal 1589; R. Porter, ‘Plague and Panic’, New Society, 12 December 1986,

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Any such responses, of course, would have run into the difficulty that the civil servants would have lacked any historical model to replicate or modify, a difficulty which should not be underestimated. Such reliance on history is not unique to the UK, of course. As Peter Baldwin has argued, it was mirrored elsewhere: … the industrialized nations of Europe and North America took divergent approaches that broadly corresponded to the preventive tactics they had adopted during the nineteenth century when dealing with earlier epidemics of contagious disease: plague, cholera, yellow fever, smallpox, and syphilis. In each country, policy makers were convinced that they were now responding in ways dictated by the nature of the threat they faced. In fact, their actions bespoke the influence of past decisions … such divergences among the industrialized nations are due to precedence – a kind of deep historical public health memory.69

Having repudiated criminalisation as a response to the sexual transmission of disease, the UK was all but locked into that position.

Towards rationalisation: the Law Commission proposals

In the early 1990s, the Law Commission examined the law of offences against the person. The Commission was concerned to clarify and rationalise the law,70 with the result that it saw the omission of disease transmission from English criminal law as a peculiar anomaly rather than a matter of principle. Noting that causing illness or disease did not fall clearly within the scope of the present law, the Commission proposed to make it clear that they would, simply by virtue of a statutory definition of ‘injury’ which would put the matter beyond doubt.71 For the Commission, such a change merely amounts to the ‘removal of a technical bar to conviction for a general offence which otherwise probably already applies to the behaviour in question’.72 The HIV sector did succeed in lobbying the government to the effect that this was more than a mere technical matter.73 In due course, the 11. See also J. Morton, ‘AIDS and the Contagious Diseases Acts’, (1987) 137 New Law Journal 764. 69 P. Baldwin, Disease and Democracy: The Industrialized World Faces AIDS (Berkeley, University of California Press, 2005), p. 1. 70 See Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com CP No 122, 1992), paras 2.1–2.6. 71 Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com CP No 122, 1992), paras 8.17–8.18. 72 Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com No 218, 1993), para. 15.17, n. 200 (emphasis in original). 73 See M. Weait, Intimacy and Responsibility: The Criminalisation of HIV Transmission (Abingdon, Routledge-Cavendish, 2007), pp. 21–27.

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Home Office rejected the Commission’s proposals, suggesting that only the deliberate transmission of disease intending to cause a serious illness should be criminalised.74 These represent two very different approaches to the issue.75 The Commission, unsurprisingly, did not advert to the question of whether the criminalisation of ‘causing injury’ was justifiable. But the Home Office had been persuaded to consider the matter at a different level of specificity, concentrating on the criminalisation of disease transmission. When the issue was analysed at that level, it became possible to argue that the harm caused by criminalisation might be greater than the harm which it would prevent.

Rationalisation and entrenchment: R v. Dica

But the government never legislated on the basis of its 1998 consultation paper, and its proposals were soon overtaken by events. As noted earlier, the decision in R v. Ireland76 opened the door to prosecutions for the reckless transmission of HIV, and prosecutors took advantage of this in due course. When the Court of Appeal ruled in R v. Dica that the reckless transmission of HIV was within the scope of the 1861 Act, Judge LJ quoted approvingly from an article by John Spencer: To infect an unsuspecting person with a grave disease you know you have, or may have, by behaviour that you know involves a risk of transmission, and that you know you could easily modify to reduce or eliminate the risk, is to harm another in a way that is both needless and callous. For that reason, criminal liability is justified unless there are strong countervailing reasons. In my view there are not.77

This is of course, specific in its own terms, confined as it is to the question of disease. It must, however, be understood against the background of a newly fashioned (in Ireland) general principle – that is, that recklessly causing grievous bodily harm is a criminal offence. In deciding whether the reckless transmission of HIV should be criminalised, we might invoke one of two alternative principles, as follows: (1)  recklessly infecting another person with a serious disease should be criminalised, or; 74 Home Office, Violence: Reforming the Offences Against the Person Act 1861 (1998), para. 3.18. 75 Chalmers, Legal Responses to HIV and AIDS, p. 134. 76 [1998] AC 147. 77 J. R. Spencer, ‘Liability for Reckless Infection: Part 2’, (2004) 154 New Law Journal 448, 471, described by Judge LJ as an ‘illuminating conclusion’ in R v. Dica [2004] QB 1257 at [55].

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(2) recklessly causing serious harm to another person should be criminalised. The first is rather difficult to justify in terms of the harm principle, given that there is strong research evidence suggesting that HIV-specific laws do not affect sexual behaviour.78 But the second is rather more easily accepted, for two reasons. First, although specific criminal law rules do not generally seem to deter, criminal justice systems do deter criminal conduct, meaning that broadly expressed criminal prohibitions of this nature should be regarded as having a deterrent effect.79 Second, we are more likely to accept this contention simply because if criminal law rules of this type had no deterrent effect, we might fear that there was no point in the whole enterprise and that we should abandon it altogether. Spencer’s reference to ‘countervailing reasons’ leaves open the possibility of establishing a good case for taking the transmission of disease outside the scope of the criminal law: that is, fashioning an exception to the general principle. While this might lead us to argue that nothing has changed, that would be wrong: what it does is to reverse the burden of proof, and given the rather sketchy evidence on which costbenefit calculations are carried out in criminalisation decisions, that is ­crucial. Before Dica, the question was this: ‘is there a convincing case for criminalising the reckless transmission of disease’? Now, the question is, ‘is there a convincing case for creating an exception to the general criminalisation of recklessly harming another person’? There is nothing illogical about answering both questions in the negative.

Conclusion

In rough terms, I have attempted to argue the following in this chapter. If we adopt a particular conception of the harm principle, a question arises as to the level of specificity at which that harm is described. I have used the criminalisation of HIV transmission as an example of why this question matters. In English law, the question was – up until relatively recently – whether the criminalisation of the sexual transmission of disease was compatible with the harm principle. The nineteenth century experience of the Contagious Diseases Acts convinced many people that it was not, and that conviction was perpetuated whenever the specific issue was revisited in the twentieth century. Starting with 78 S. Burris et  al., ‘Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial’, (2007) 39 Arizona State Law Journal 467. 79 See P. H. Robinson and J. M. Darley, ‘Does Criminal Law Deter? A Behavioural Science Investigation’, (2004) 24 Oxford Journal of Legal Studies 173.

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the Law Commission in the 1990s, English law moved towards placing the transmission of disease within a broader framework of injury to the person. Here, the harm principle is more readily satisfied, and it has allowed a general offence to reach a result which would have been highly unlikely as a result of specific legislation. The use of general offences rather than specific ones has certain advantages. Offences which are specific either to HIV or sexually transmitted infections more generally may carry an increased risk of exacerbating the stigma associated with certain infections, or of misleadingly giving the impression that the law can and will prevent the sexual transmission of infection. UNAIDS, for that reason, has argued that if the criminal law is to be used (while suggesting that there are good reasons to be sceptical about such a course of action),80 offences should be generic rather than specific.81 Moreover, attempts to create specific offences may be based on assumptions as to the risk of transmission associated with a disease, or the consequences of infection, which are either inaccurate from the outset or become outdated over time. The application of general criminal offences allows the law to react to developments in medical science. For example, as advances in treatment for HIV mean that HIV-positive individuals receiving antiretroviral therapy might in certain circumstances be regarded as non-infectious,82 the courts can respond to this by revising their views on the circumstances in which an individual’s failure to disclose their HIV-positive status should be regarded as criminal. That is particularly important in jurisdictions such as Canada, where the law recognises that mere exposure to the risk of HIV infection, even in the absence of transmission, may amount to a criminal offence.83 The Canadian courts have had to consider, for example, whether unprotected oral intercourse is sufficiently risky to be caught by the criminal law,84 and similarly whether an individual could be guilty of an offence where they failed to 80 UNAIDS, Criminal Law, Public Health and HIV Transmission: A Policy Options Paper (Geneva, UNAIDS, 2002), ch. 3. 81 UNAIDS, Handbook for Legislators on HIV/AIDS, Law and Human Rights (Geneva, UNAIDS, 1999), p. 51. 82 P. Vernazza et al., ‘Les Personnes Séropositives ne Souffrant D’acune Autre MST et Suivant un Traitement Antiretroviral Efficace ne Transmettent pas le VIH par voie Sexuelle’, (2008) 89 Bulletin des Médecins Suisses 165. See E. J. Bernard, ‘Swiss Experts Say Individuals with Undetectable Viral Load and No STI Cannot Transmit HIV During Sex’, Aidsmap (www.aidsmap.com), 30 January 2008. 83 This is because, as noted earlier, an individual’s failure to disclose their HIV-positive status to their sexual partner may invalidate that person’s consent to sexual intercourse, thus rendering the HIV-positive person guilty of sexual assault: R v. Cuerrier [1998] 2 SCR 371. 84 In R v. Edwards 2001 NSSC 80 it was held that it was not.

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disclose their HIV-positive status to their partners prior to unprotected intercourse, but had a low viral load at the relevant time and did not in fact transmit HIV.85 Unsatisfactory as the legal uncertainty attendant on such cases is, it would be far worse if the legislature had attempted to set down in statute precisely which acts would and would not (in the absence of disclosure) be criminal, leaving no room for an argument of this sort. The disadvantage of applying general criminal offences, of course, is that they leave little room for debate on whether criminalisation is an appropriate response to disease in particular. While in theory a legislature might choose to remove disease transmission from the scope of the criminal law, it is unlikely (although not entirely impossible) that any government would see the creation of such an exception as either desirable in principle or a legislative priority in practice. Such debates tend, therefore, to centre on the principles which should govern prosecutorial discretion, which is an inadequate solution but might be seen as the best that can be achieved in the circumstances.86 This is reflected in the Oslo Declaration on HIV Criminalisation (2012),87 which calls for the repeal of ‘HIV-specific criminal laws’88 and argues for prosecutorial and police guidelines rather than amendment of the law where a country’s general law is being or can be used for HIV-related prosecutions.89 While such an approach is commendably pragmatic, it serves as further evidence of how, once the general criminal law is applied, the scope for engaging in debate about the legitimacy of that law applying to specific cases such as the transmission of disease is extremely limited. 85 In R v. Mabior 2012 SCC 47 it was (controversially) held that criminal liability would attach in such cases unless condoms had been used. 86 See J. Rogers, ‘Criminal Liability for the Transmission of HIV’, (2005) CLJ ­20. 87 Oslo Declaration on HIV Criminalisation (2012), www.hivjustice.net/oslo/oslodeclaration/. 88 Ibid. para. 4.  89  Ibid. para. 5.

8

Compulsion, surveillance, testing and treatment: a truly ‘criminal’ matter? Jean V. McHale



Introduction

The fear of disease pandemics and the perceptible need for state responses to such threats reaches back through history.1 As Johnson notes ‘the role of contagion in the spread of disease had been known since the second bubonic plague of 1660’.2 The role of community action in addressing disease transmission was highlighted in 1665 when, in a selfless act, the villagers of Eyam in Derbyshire decided to stop access to and from their village to stop the spread of the plague.3 At various stages in history the law has been used to address communicable disease transmission. In Venice ships were moored outside the city where plague victims were quarantined.4 In more recent times the plagues recede from public memory as modern medicine has enabled effective treatment and cure of many illnesses which were, in the past, fatal. But real fears of the mass spread of communicable diseases remain. So, for example, the spread of HIV in the late 1980s caused considerable fear and panic across the Northern Hemisphere.5 In 1985, in the UK, controversy was caused when a man suffering from AIDS was detained in hospital.6 SARS and avian flu prompted similar concerns and panic in the 2000s. Perceptions of communicable diseases may change over time as clinical interventions improve and evolve. Moreover, the focus of clinicians working in the area of 1 See further: M. P. Battin, L. P. Francis, J. A. Jacobson and C. B. Smith, The Patient as a Victim and Vector: Bioethics and Infectious Diseases (Oxford University Press, 2008). 2 L. Johnson, ‘Defining public health’, in R. Martin and L. Johnson (eds.), Law and the Public Dimension of Health (Cavendish, London and Sydney, 2001), pp. 1–32. 3 L. Johnson, ‘Particular Issues of Public Health: Infectious Diseases’, in Martin and Johnson, Law and the Public Dimension of Health, pp. 243–60. 4 L. Roseberg et al., ‘Quarantine, Isolation and Cohorting: From Cholera to Klebsiella’, (2012)13(2) Surgical Infections 68–53. 5 See further: discussion in J. Montgomery, ‘Victims or Threats? The Framing of HIV’, (1990) XII Liverpool Law Review 25. 6 ‘Detaining Patients with AIDS’, (1985) 291 British Medical Journal 1002.

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public health may also change. As Battin et al. note, a leading public health text, Maxcy–Rosenau, ­contained in its 1956 edition over 600 pages on communicable diseases; today the same volume contains around 300 such pages. HIV is a notable example where the evolution of antiretroviral treatment means that today if individuals are diagnosed early with HIV they will enjoy what is a near-normal life expectancy.7 As technology and knowledge evolve, however, clinical approaches may remain inconsistent and indeed this can be exacerbated across jurisdictions.8 The increasing global mobility of people across borders, facilitated by international treaties and agreements, poses new challenges in addressing disease transmission. Disease is no respecter of borders. Today, economic development and wealth creation is predicated upon individuals being able to travel across borders. This, in turn, has prompted greater international collaboration. What constitutes ‘public health’ itself is a fluid and complicated concept going beyond the scope of this chapter.9 Public health policy and indeed legal engagement is not simply a national but rather a global concern with international organizations, such as the World Health Organization (WHO), playing an important part.10 The International Health Regulations, the global framework concerning the spread of infectious diseases, have for many years provided strategies for dealing with public health emergencies concerning communicable diseases.11 The WHO also plays an active role in the regulations and approaches to pandemics.12 However, while this international level of cooperation and control is, of course, important

7 See further: Health Protection Agency, HIV in the United Kingdom: 2012 Report (London, Health Protection Services, Colindale, 2012). It is estimated that there were 96,000 persons with HIV in the UK at the end of 2010; 24% of those were undiagnosed. 8 J. A. Jacobson et  al., ‘Vertical Transmission of Infectious Diseases and Genetic Disorder: Are the Medical and Public Responses Consistent?’ in A. Dawson and M. Verweij (eds.), Ethics, Prevention and Public Health (Oxford, Clarendon, 2007), pp. 145–59. 9 See further: incisive discussion in J. Coggon, What Makes Health Public? A Critical Evaluation of Moral, Legal, and Political Claims in Public Health (Cambridge University Press, 2012). 10 See further: T. Murphy and N. Whitty, ‘Is Human Rights Prepared? Risk, Rights and Public Health Emergencies’, (2009) 17 Medical Law Review 219. 11 See discussion below. 12 See further: L. O. Gostin, ‘The International Health Regulations: a new paradigm for global health governance’, in S. McLean (ed.), First Do No Harm (Dartmouth, Ashgate, 2005), pp. 59–80 and L. O. Gostin, ‘International Infectious Disease Law: Revision of the World Health Organization’s International Health Regulations’, (2004) 291 Journal of the American Medical Association 2623.

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in trying to stem the transfer of disease across nations, problems still remain.13 As Gostin has commented: The WHO’s difficulty with member state compliance poses a major problem for world health. National acceptance of standards for prevention and control of infectious diseases lies at the heart of a successful strategy. Global surveillance is only as strong as its weakest link, making it vital to maintain uniformly high levels of public health preparedness in all regions of the world.14

Thus, therein lies the first caveat: international and even specific domestic responses to communicable disease transmission are fundamentally dependent upon the approach taken by other states. If those states operate in a political union then this may facilitate still further disease prevention strategies. A notable illustration is that of the European Union (EU). The EU’s European Centre for Disease Prevention and Control (ECDC) was established in 2005.15 This is an agency aimed at strengthening Europe’s defences against infectious diseases located in Stockholm, Sweden. According to Article 3 of the Founding Regulation, the ECDC’s mission is to identify, assess and communicate current and emerging threats to human health posed by infectious diseases. It works in partnership with national health protection bodies across Europe to strengthen and develop continent-wide disease surveillance and early warning systems. Furthermore, the need for commonality in response to public health threats which can be addressed in the light of and responding to the broader global dimension is evident in the EU Health for Growth programme agreed in November 2011.16 This commits the EU to: Developing common approaches and demonstrating their value for better preparedness and coordination in health emergencies in order to protect citizens from cross-border health threats.

The regulation which is contained in this proposal states that the EU’s objective is to demonstrate common approaches and develop these for preparedness against disease.17 This would include protecting citizens 13 Gostin, ‘The International Health Regulations’, p.  64. See also World Health Organization, Global Crisis – Global Solutions: Managing Public Health Emergencies of International Concern Through the Revised International Health Regulations (Geneva, World Health Organization, 2002). Publication WHO/CDS/CSR/GAR/2002.4. 14 Gostin, ‘International Infectious Disease Law’, p. 2626. 15 See work of European Centre for Disease Prevention and Control Reg EC 851/2004 16 Proposal for a Regulation of the European Parliament and of the Council on Establishing a Health for Growth Programme the third multi-annual programme of EU action in the field of health for the period 2014–20, Brussels 9.11.2011, COM (2011) 709 final. 17 Ibid. Article 3(4).

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from cross-border threats, improving risk assessment capacity and capacity building against threats from disease, and contributing to the development of a knowledge system.18 Nonetheless, such cooperation measures can only go so far. In an era of enhanced patient mobility, actively facilitated, as in the case of the EU by Treaty provisions such as enabling free movement of persons,19 it is the steps which are taken by the individual states themselves which may prove the most effective in dealing with communicable disease. But exactly how far should an individual state go in addressing the threats from communicable diseases? In the past criminal law has been used to address the problems of contagion. The rise of new ‘epidemics’ such as HIV led to greater use of criminal law in other jurisdictions.20 But is it really the case today that criminal compulsion should play a part in communicable disease control? What is the case for using the criminal law to underpin surveillance, testing and treatment? Should containing communicable disease really be a ‘criminal matter’? How far should public health override the ‘private life’ to warrant criminal compulsion?21 First, I examine the legitimacy of the use of the criminal law in this area and then examine in turn surveillance, testing and treatment.

Criminal law as a public health ‘tool’

Criminal law powers and sanctions have long been used in the area of public health law in the UK. Historically, English law regulates this area through the ‘control powers’ – giving public health officials powers to take steps to reduce infection risks. This meant that officials could, for example, segregate persons and stop ‘risky’ behaviour. Second, the law used remedial measures where infection had taken place and where criminal penalties might be employed. While the development of public health law can, as Martin notes, be traced from the law concerning

18 Ibid. Article ­4(4). 19 Case C-372/04 R (on the application of Watts) v. Bedford Primary Care Trust, Secretary of State for Health [2006] ECR I-4325; A. du Bois-Pedain, ‘Seeking Healthcare Elsewhere’, (2007) 66 Cambridge Law Journal 44; G. Davies, ‘The Effect of Mrs Watts’ Trip to France on the National Health Service’, (2007) 18 Kings Law Journal 160; J. V. McHale, ‘The Right to Medical Treatment in EU Law’, (2007) 15 Medical Law Review 99. 20 See, e.g., Z. Lazzarini and S. Bray, ‘Evaluating the Impact of Criminal Laws on HIV Risk Behaviour’, (2002) 30 Journal of Law, Medicine and Ethics 224. 21 See further: M. Brazier and J. Harris, ‘Public Health and Private Lives’, (1996) 4 Medical Law Review 171.

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repairs on sewers in 1225, 22 it was not until 1868, following the cholera epidemics of the 1860s, that the term ‘public health’ was first used in the context of legislation. Police powers were used at that time to address a range of matters from food adulteration to responses such as epidemics. The basis of the law in the area could be found in 1848 in the first Public Health Act and in the Sanitary Laws of the 1870s. Some changes continued to be made over time. So, for example, the controls over tuberculosis were tightened in the 1960s, which made detention of sufferers easier as it removed the safeguards which then existed against arbitrary detention.23 Until the early 2010s in the UK, the focus of the legislation and related regulations was upon the persons who carried or transmitted disease.24 In more recent times, legislation from the mid 1980s, the Public Health (Control of Disease) Act 1984 and secondary regulations including the Public Health (Infectious Diseases) Regulations 1988 regulated this area until 2008. These were essentially consolidation measures. The legislation made reference to five ‘notifiable’ diseases and in the case of these diseases provided for specific powers concerning both reporting and exclusion.25 In addition there was power to extend the number of such diseases and this was undertaken through regulations.26 The 1984 Act gave powers to enter premises to remove threats to health; and to refuse such entry itself was a criminal offence: there was no need to first obtain a warrant prior to entry.27 Persons could also be detained on the order of a Justice of the Peace (JP). An order could be made where, on the advice of an authorized medical practitioner, it was reasonably believed that a person was suffering from or was carrying a notifiable disease28 for a person to have a medical examination, to be removed to hospital or to be detained.29 Powers also existed to exclude children who suffered from a notifiable disease from school30 and places of entertainment,31 and also to exclude workers from work 32 and others could be excluded from public laundries33 or libraries.34 In the 1980s the question arose as to whether to include HIV or AIDS 22 R. Martin, ‘Domestic Regulation of Public Health: England and Wales’, in Martin and Johnson, Law and the Public Dimension of Health, pp. 75–112, at p. 76. 23 See further: discussion in R. Coker, ‘The Law, Human Rights and the Detention of Persons with Tuberculosis in England and Wales’, (2000) 22 Journal of Public Health 263. 24 Martin, ‘Domestic Regulation of Public Health: England and Wales’, p. 81. 25 Cholera, plague, relapsing fever, smallpox and typhus. 26 Public Health (Infectious Diseases) Regulations 1988 (SI 1988, No. 1546). 27 Public Health (Control of Disease Act) 1984, s. 61(2). 28 Ibid., s. 37. 29 Ibid. s. 38.  30  Ibid. s. 21.  31  Ibid. s. 23. 32   Ibid. s. 20.  33  Ibid. s. ­24.  34  Ibid. s. 25.

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in the category of notifiable diseases.35 Ultimately, it was not included in that category but was dealt with separately through the medium of the criminal law; targeting specific individuals who had deliberately or recklessly transmitted the virus to others.36 Over time, various aspects of the legislation came under criticism – not least because of concerns that they contravened human rights law. In 1988, a Committee of Inquiry chaired by the Government’s Chief Medical Officer recommended that the: DHSS should revise the Public Health (Control of Disease) Act 1984 with a view to producing a more up-to-date and relevant legislative backing to control of communicable disease and infection.37

Concerns began to be expressed regarding the scope and structure of the existing law and indeed whether it could be seen as compliant with the Human Rights Act 1998, which enacted certain provisions of the European Convention on Human Rights (ECHR) into English law. Moreover, it was seen as not able to deal with new diseases or pathogens as they emerged. The law was finally amended in 2008 by the Health and Social Care Act 2008, which introduced a new Part 2A to the 1984 Act. Essentially, the primary legislation now provides a regulatory framework with the detail provided through secondary legislation in the form of regulations promulgated via a statutory instrument. The new provisions were constructed with the aim of taking an ‘all hazards’ approach, which would enable more flexibility in dealing with new diseases. Overall, under the reforms, some 17 offences were dropped, with four modernized and three new offences created.38 A series of powers are given to JPs. In addition, the intention is that as far as possible any disease transmission threat would be dealt with by voluntary measures. It was intended that by placing these in regulations along with new timescales for notifications it would make it easier to amend the law as necessary in the future. The test is now rather that there is the potential that infection/ contamination may result in significant harm. Nonetheless the use of the criminal law remains as a regulatory tool in this area. But should this still be the case? Is there truly a case for ‘crime’ in such an area focused upon ‘health’?

35 Public Health (Infectious Diseases) Regulations 1988, reg. 5. 36 See, e.g., R v. Dica[2005] EWCA 2304. 37 Chief Medical Officer, Public Health in England: The Report of the Committee of Inquiry into the Future Development of the Public Health Function (London, HMSO, 1988). 38 Health Protection Regulations 2010, Explanatory notes page 40.

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Do we need to utilize the criminal law as a means of addressing concerns in relation to public health? Concerns remain as to whether criminal compulsion is compatible with an effective human rights strategy. If a utilitarian justification is taken then it can be argued that the criminal law may indeed have a legitimate role to play. As J. S. Mill memorably wrote: As soon as any part of a person’s conduct affects prejudicially the interests of others, society has a jurisdiction over it and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion.39

But when would the concerns regarding the harms to others outweigh such an approach? The Nuffield Council on Bioethics, in their report on Public Health, suggested that a framework for public health needs to incorporate what is more akin to social contract theory – ideas of ‘community’ which they see as being ‘the value of belonging to a society in which each person’s welfare and that of the whole community matters to everyone’.40 The Report proposed a revised liberal framework  – a stewardship model  – where it is an obligation of the state to provide conditions that enable people to be healthy. It takes the view that ‘the notion of stewardship gives expression to the obligation on states to seek to provide conditions that allow people to be healthy, especially in relation to reducing health inequalities.’41 The Report suggested that a range of factors can impact upon decision-making in public health, including the need for evidence-based work, the extent and nature of any risk which is involved; the ‘precautionary principle’42 and proportionality. Other factors may be the reality of ‘choice’ and ­v ulnerable groups in societies and inequalities between different groups. They 39 J. S. Mill, ‘On Liberty’ and Other Writings, edited by Stefan Collini (Cambridge University Press, 1989), p. 76. 40 Nuffield Council on Bioethics, Public Health: Ethical Issues (London, Nuffield Council on Bioethics, 2007), para. 2.34. 41 Ibid. para. 2.41. 42 This is something which itself is a subject of controversy. There has been growing use of this in developing health policy at EU level. See further Communication from the Commission on the Precautionary Principle COM (2001). See also Bureau of European Policy Advisors, Second Dialogue EU-US on Precaution in Risk Management Science and Society Projects (Michael D. Rogers), Project 1: ‘The Reality of Precaution: Comparing Transatlantic Approaches to Risks and Regulation’ (updated 22 July 2002), http://ec.europa.eu/dgs/policy_advisers/archives/activities/science_technology/ project_1_en.htm; European Parliament resolution on the communication from the Commission on application of the precautionary principle and multiannual arrangements for setting TACs (COM(2000) 803  – C5–0106/2001–2001/2055(COS)), ­w ww.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A5-20010407&language=EN.

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proposed an ‘intervention ladder’ with ‘progressive steps from individual freedom and responsibility towards state intervention as one moves up the ladder’.43 These ‘rungs’ range from simply not acting at all, through provision of information, incentives, disincentives through to the restriction or ultimately the elimination of choice. The use of the criminal law can be seen very much as being a ‘last resort’ option; something to be introduced when other measures either have failed or are highly unlikely to be effective and there is an immediate need to deal with this as an issue. A utilitarian harm-based approach may be seen as unduly simplistic in framing health law and health policy. Today, if a harm-based approach was intended to translate such a utilitarian justification into law this would need to be considered through the prism of human rights analysis and compliance due to the Human Rights Act 1998. This UK legislation requires domestic law to be interpreted in relation to a range of the civil and political rights set out in the ECHR. Nonetheless such rights are rarely framed in discussion in absolute terms. Certain rights, such as Article 5 (which concerns detention without trial), are known as limited rights. Other rights that are particularly relevant in determining whether there should be restrictions placed on the basis of public health considerations – notably Article 8 (the right to privacy) which has been interpreted to provide a right to autonomy, and Article 9 (the right to freedom of conscience, religion and belief) where certain public health considerations and limitations may conflict directly.44 The use of the criminal law in health care law has, of course, notable challenges.45 Criminalization represents fundamental societal condemnation of an activity and it is the case that such condemnation should only operate in exceptional circumstances. It is submitted that any use of criminal law in the area of public health must be aligned with the foundational approaches to use of the criminal law itself. It cannot be viewed in isolation, that is in relation only to specific ethical/bioethical approaches – albeit that these may inform the debate regarding criminalization. We should not fear engaging with a ­criminal law framework, nor indeed attempt to claim special exceptions for health care law. It is submitted that criminal law jurisprudential analysis is more than 43 Nuffield Council on Bioethics, Public Health, p. 42. 44 R. Martin, ‘Implementing Public Health Policy and Practice within a Legal Framework: Constraints of Culture, Faith and Belief’, (2008) 9 Medical Law International 311. 45 See further: J. Montgomery, ‘Medicalising Crime–Criminalising Health?’ in C. Erin and S. Ost (eds.), The Criminal Justice System and Health Care (Oxford University Press, 2007), pp. 257–72.

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sufficiently sophisticated enough to address the ethical complexities which might arise in such a situation and that indeed health lawyers to date have not engaged sufficiently with such criminal law paradigms in the area of public health. There is an extensive literature on the question of the limits of criminalization and limited space precludes further engagement with this. Here we take as the starting point the work of the eminent criminal law scholar Andrew Ashworth who states that the ‘building blocks’ for determining whether an action should be criminalized are ‘that the conduct is harmful, wrongful and of public concern’.46 His approach to the boundaries of criminal law effectively recognizes both issues of human rights, utilitarianism and the challenges of use of the criminal law in modern day society. It provides a balanced set of criteria and an appropriate model for us to evaluate the operation of criminal law in this area. He persuasively argues that the approach to criminalization should be minimalist: This means (a) respecting human rights while enacting criminal laws (b) recognizing a right not to be subjected to state punishment and the rights-deprivations that it often involves (c) regarding the criminal law as a technique of last resort after less invasive and stigmatic measures have been dismissed as inappropriate and (d) stepping back from criminalization if its effects are likely to be worse or no better than adopting some other approach.47 It is suggested that we should utilize this framework which, while itself builds upon both utilitarian and deontological approaches, recognizes the practical problems of evolution of law and policy development in this area. Taking Ashworth’s categories as a prism through which to view public health powers in relation to surveillance, testing, screening and treatment, I will consider each area in turn and the case for criminalization. Some of these areas may be obvious candidates for criminalization, others may be clearly within the remit of civil law regulation. As we shall see, however, on closer examination the picture may prove somewhat different. One further caveat needs to be introduced into this area, namely that the analysis here is focused on the UK. Very different results to the same tests might emerge in different jurisdictions where 46 A. Ashworth, Principles of Criminal Law, 6th edn (Oxford University Press, 2009), p. 39. 47 Ibid. p. 40.

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there are different challenges from disease, different health and care support systems, different systems of health care professional education and training, and different cultural norms. ­Surveillance The Department of Health has defined surveillance as follows: Surveillance encompasses the processes of data collection, analysis, interpretation and dissemination that are: (a) undertaken on an ongoing basis (i.e., there is a defined but not time-limited cycle of processing (b) provide measures of population or group health status or determinants of health (hazards, exposures, behaviours) against historical or geographical baselines/comparators or defined levels/triggers for action and (c) for which there is an agreed and explicit set out actions, time frames and accountabilities for taking those actions, that will be initiated or informed by the outputs.48

As has been said by Monaghan: Surveillance is the foundation of any communicable disease control system. It enables the tracking of disease trends, the identification of new communicable disease threats, vaccine evaluation, the detection of outbreaks and the monitoring of control measures.49

As Gostin eloquently writes: ‘The French word surveillance was introduced into the English language at the time of the Napoleonic wars and meant “a close watch or guard kept over a person”.’50 Today, public health surveillance means the continued watchfulness over the distribution and trends of risk factors, injury and disease in the population through the systematic collection, analysis and interpretation of selected health data for use in the planning, implementation and evaluation of public health practices.51 Obtaining information about individuals has clear benefits for public health physicians.52 Population disease surveillance enables those working in the area of public health to track the progress of a disease and to introduce targeted measures to stop the 48 Department of Health, Public Health Surveillance Towards a Public Health Surveillance Strategy for England (London, Department of Health, 2013), para. 3.1 49 S. Monaghan, The State of Communicable Disease Law (London, Nuffield Trust, 2002), p. 47. 50 L. O. Gostin, Public Health Law: Power, Duty, Restraint, 2nd edn (Berkeley, University of California Press, 2008), p. 116. 51 Gostin, Public Health Law, p. 290. 52 Nuffield Council on Bioethics, Public Health, paras 4.37–4.40.

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spread of that disease.53 However to obtain such information inevitably means limiting, at least to some extent, the confidentiality of personal health information. A further form of surveillance relates to a practice of placing individuals under surveillance. Rather than epidemiological surveillance this type of surveillance enables the control of disease transmission. It is something which would involve considerably more invasion of individual human rights. As Gostin and Lazzarini rightly comment: ‘The public health benefits of individual surveillance are minimal and in most cases do not justify the substantial human rights burdens.’54 They do, however, recognize that in exceptional circumstances this may be justified, as in the case of community supervision as opposed to detention as a less restrictive alternative. We return to the issue of restrictive measures against individuals as opposed to epidemiological surveillance in the context of the question of testing and treatment below. From the days of the Hippocratic Oath onwards, confidentiality has been inherent in clinical practice as a means of professionals safeguarding their patients’ confidences.55 There are two main reasons for this. First, that of respecting the individual patient’s rights of privacy: today, in English law, respect for privacy is expressly articulated through the prism of Article 8 of the ECHR.56 Second – a utilitarian justification – unless patient confidentiality is assured patients may simply not come forward to receive treatment. This may be particularly the case where an individual may fear stigma and discrimination as a consequence of others knowing that they are HIV-positive.57 Obtaining information regarding individual patients must thus be justified. Set against this confidentiality in English law has never been seen as absolute. The basis for safeguarding confidentiality, the equitable remedy of breach of confidence, is a discretionary remedy provided by the courts evolved through the law of equity originally as a means of safeguarding commercial confidentiality. The court has the power to weigh up the public interest in maintaining confidentiality against 53 Department of Health, Public Health Surveillance, para. 9.8. 54 L. O. Gostin and Z. Lazzarini, Human Rights and Public Health in the AIDS Pandemic (Oxford University Press, 1997), p. 105. 55 J. K. Mason and G. T. Laurie, Mason and McCall Smith’s Law and Medical Ethics, 8th edn (Oxford University Press, 2010), ch. 6; J. V. McHale, Medical Confidentiality and Legal Privilege (London, Routledge, 1993), ch. 4; S. Pattinson, Medical Law and Ethics, 3rd edn (London, Sweet and Maxwell, 2011), ch. 6. 56 Z v. Finland (1998) 25 EHRR 371; MS v. Sweden (1999) 28 EHRR 313; Campbell v. Mirror Group Newspapers [2004] 2 All ER 995. 57 See also, House of Lords Select Committee on HIV and AIDS in the United Kingdom. 1st Report of Session 2010–12 ‘No vaccine, no cure: HIV and AIDS in the United Kingdom’, Report HL Paper 188, paras 98–104.

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the public interest in disclosure. Since the Human Rights Act 1998 and the case of Campbell v. Mirror Group Newspapers it is framed in terms of Article 8 of the ECHR – the human right to privacy. This right, in turn, is a qualified and not an absolute right. It can be overridden on the basis of the public interest, including the public interest in safeguarding public health.58 Moreover, even an utilitarian justification for privacy can be outweighed in some instances as the greater benefit to the population as a whole in the context of an outbreak of a contagious disease may be that of containing the spread of the disease rather than in safeguarding the confidentiality of the individual. But where exactly does this balance lie? It may depend upon the nature of the information in question and the extent to which it will be used. Population screening is a mechanism by which clinicians can identify trends and spread of disease. It can be seen as being strongly in the public interest. But in collating such data this is inevitably personal information. Should individuals have a choice to stop its collection and distribution? The ability to store information on computer has led to challenges regarding the nature of the use of such information. The broader the access via computer the greater the concerns regarding the confidentiality safeguards concerning that personal data. In addition, it should be in compliance with existing law including the Data Protection Act 1998.59 This safeguards the processing of personal data on computer, including health records. Such records must be processed in accordance with a series of what are known as ‘Data Protection Principles’.60 On a day-to-day basis data-handling within the NHS is undertaken according to what are known as ‘Caldicott principles’, following a report undertaken for the Department of Health by Dame Fiona Caldicott.61 These principles include: the purposes for which data is used should be justified; identifiable patient information should not be used unless this is absolutely necessary; and where data is used it should be the minimum necessary. The access to such information should be on a ‘need to know’ basis. As this is confidential information 58 See, e.g., J. Coggon, ‘Public Health, Responsibility and English Law: Are There Such Things as No Smoke without Fire or Needless Clean Needles?’, (2009) 17 Medical Law Review 127. 59 This Act aligns UK law with the EU Data Protection Directive, Directive 95/46/ EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, [1995] OJ 281. See further S. Pattinson and D. Beyleveld, ‘Confidentiality and Data Protection’, in A. Grubb, J. Laing and J. V. McHale (eds.), Principles of Medical Law, 3rd edn (Oxford University Press, 2010), pp. 651–724. 60 Data Protection Act 1998, Sch. 1, Part 1. 61 Report on the Review of Patient Identifiable Information (1997) and Executive Letter HSC 1999/012.

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the general principle is that for such information to be used this must be with patient consent. Those working in public health were, however, concerned regarding the implications of obtaining consent from individuals in relation to the practical problems that this might pose. This provided one of the drivers to reform the law in the area and to enable access to such patient information without obtaining patient consent. Routine notification of communicable diseases has long been mandated as noted earlier. While disease surveillance in the UK has worked reasonably over the years there have been concerns regarding undernotification.62 Developments in the regulation of communicable disease surveillance have been facilitated through the Health Protection (Notification) Regulations 2010.63 These state a list of diseases which remain notifiable by doctors to the proper officer of the local authority.64 The new reforms target new threats such as botulism, legionnaires’ disease and diseases which can result from exposure to chemicals or to radiation. But communicable disease surveillance is something which can extend far beyond what are ‘notifiable’ diseases. Currently, the use of confidential information for the surveillance, control and prevention of communicable diseases is facilitated through additional express permissions provided under section 251 of the NHS Act 2006 and related regulations.65 This enables the reporting of communicable diseases which are not covered under statute as being notifiable diseases. It also enables certain enhanced surveillance for a number of diseases, including some which are statutorially notifiable, and finally it also facilitates general surveillance and control of communicable diseases. The Health Protection Agency (HPA) states that patients may ‘opt out’ after the reasons for collecting the information have been obtained. But while this may be the case, in principle, it is unclear how wide patient knowledge is about this in practice and how realistic a right it thus remains.66 This issue is ripe for reconsideration by Public Health England. This is a new organization which replaces the previous regulatory body in this area, the Health Protection Agency.

62 See further: M. Keramarou and M. R. Evans, ‘Completeness of Infectious Disease Notification in the UK: A Systematic Review’, (2012) 64 Journal of Infection 555–66. 63 Health Protection (Notification) Regulations 2010 (SI 2010 No. 659). 64 Ibid. 65 Health Services (Control of Patient Information) Regulations 2002, (SI 2002 No. 1438). 66 Health Protection Agency Information and the Health Protection Agency HPA (2009) and see further Health Protection Agency, ‘Surveillance and Confidentiality: Information for Health Care Professionals’, www.hpa.org.uk/Topics/ InfectiousDiseases/InfectionsAZ/Surveillance: last accessed 16 January 2013.

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Its task will include the coordination of surveillance mechanisms and the establishment of a new Surveillance Quality Framework.67 The Nuffield Council on Bioethics stated in their Report Public Health: Ethical Issues that: The avoidance of significant harm to others who are at risk from a serious communicable disease may outweigh the consideration of personal privacy and confidentiality and on this basis it can be ethically justified to collect nonanonymised data about individuals for the purpose of implementing control measures. However, any overriding of privacy or confidentiality must be to the minimum extent possible to achieve the desired aim.68

While there may be strong public policy arguments in favour of the collection of such information the potential problems raised by broader use of such personal information remains a matter for concern. Such concerns were recently highlighted by the House of Lords in their Report, No Vaccine, No Cure: HIV and AIDS in the United Kingdom.69 This stressed the need for confidentiality in relation to use of information concerning HIV and AIDS; stating, for example, that ‘general practice staff should make clear to patients the weight they attach to [confidentiality]’ (para. 284). Moreover, they suggested that there was a need for better, integrated care and treatment and that there should be a government-commissioned audit of information sharing process and confidentiality practices. The UK Government’s response, in turn, emphasized its commitment to confidentiality and governance practices. The Government did not, however, state that it would take forward the recommendations of the Committee in this regard.70 However, subsequently, Dame Fiona Caldicott undertook a review into confidentiality and the sharing of information in health and social care. The Review Panel reported in April 2013.71 Specifically in relation to public health, the Review Panel noted the lack of coherence concerning the manner of regulation because of diverse regulatory structures. It saw a need for ‘a better balance in these regulations across public health or at least across surveillance, tempered with the need to minimise the use of personal confidential data’.72 Moreover, it stated that public health issues concerning health of populations should be reviewed to see whether 67 Public Health Surveillance, Towards a Public Health Surveillance Strategy for England, para. 10.2. 68 Nuffield Council on Bioethics, Public Health, para. 4.43. 69 House of Lords Select Committee on HIV and AIDS in the United Kingdom. 1st Report of Session 2010–12, No Vaccine, No Cure: HIV and AIDS in the United Kingdom, Report HL Paper 188. 70 Ibid. p. 24. 71 Department of Health, Information: To Share or not to Share? The Report of the Information Governance Review (2013). 72 Ibid. para. 8.6.

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these specifically can be brought under the Health Service (Control of Patient Information) Regulations 2002.73 Alongside a raft of recommendations, there are two which are of particular relevance for the present discussion. First, it is proposed that there should be some redefining of the Caldicott principles. While in general the principles have been largely updated, they contain a new principle, namely that: The duty to share information can be as important as the duty to protect patient confidentiality. Health and social care professionals should have the confidence to share information in the best interests of their patients within the framework set out by these principles. They should be supported by the policies of their employers, regulators and professional bodies.74

While this recognizes the importance of confidentiality, at the same time it recognizes the broader public interest issues which may arise in the area of information sharing. The Caldicott Panel also recommended that the Secretary of State for Health should be given the task of commissioning a ‘task and finish’ group including stakeholders such as the Department of Health, Public Health England and Healthwatch England.75 The aim of the group would be to determine whether the information governance questions concerning registeries and those public health functions which extend outside health protection and cancer should be dealt with through specific regulations. Greater consistency in regulatory structures is to be welcomed, but the balance between public health needs and individual privacy and confidentiality here will require careful calibration. What is notable however is that the question of the interface with the criminal law is not explored in relation to public health by the Review Panel. At present therefore disease surveillance in England and Wales does not operate through the medium of the criminal law. Choice is at least ostensibly available here, coercion not an option. Nonetheless the extent to which there is real choice though remains questionable given that information is so easily accessible – that public interest is raised as the dominant criterion. But if individuals did assert a privacy right here, could this be overridden in the courts and, indeed, should criminal law penalties be utilized? Following Ashworth’s test, could failure to collate such information constitute conduct which is ‘harmful, wrongful and of public concern’? Moreover, how would this sit with respect to human rights? Given the right not to be subject to state punishment, and if it 73   SI 2002 No. ­1438. 74 Department of Health, Information: To Share or not to Share?, para. 14.2. 75 Ibid. para. 8.6, recommendation 13.

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is used as a technique of last resort, would the effect of criminalization be likely to be worse or no better than the current situation? First, is it harmful/wrongful and of public concern? This information would certainly help to control the spread of disease and public health planning, but to suggest that it is harmful/wrongful in such a way as to legitimatize the involvement of the criminal law surely is claiming too much. While we have seen already that privacy rights are being infringed in relation to the collation of such information, the extent to which this indeed is legitimate is a matter of some debate. Furthermore, given that criminalization should be utilized as a matter of last resort, would it really be needed here in view of the extent to which information is already available to those concerned with public health surveillance? It is submitted that to utilize the criminal law as a method of compulsion in relation to public health surveillance would generally extend too far. To come within the ambit of criminalization this would need to be restricted to that of concerning surveillance to identify highly infectious diseases where there was an imminent risk of harm from their transmission. Second, currently there could be a strong argument advanced that it would be fundamentally unnecessary in the UK, given the implicit compulsion already sanctioned by the law. However, the legitimacy of such implicit compulsion may itself be subject to questioning. By effectively formalizing compulsion through surveillance mechanisms, legal mechanisms, it is submitted, may be less transparent than might be justifiable – and this is an issue which warrants further consideration in the future as the boundaries of privacy and confidentiality in health care are considered.

Testing and screening

While surveillance would generally fall outside the tests set out by Ashworth and should, except in rare and exceptional cases, not require the use of criminal sanctions, what of testing and screening? What exactly do we mean here by ‘testing’ and ‘screening’? Gostin defines these as follows: Testing refers to a medical procedure that determines the presence or absence of disease or its precursor in an individual patient. Individuals are often selected for testing because of a history of risk or clinical symptoms. In contrast screening refers to the systematic application of a medical test to a defined population.76

76 Gostin, Public Health Law, p. ­396.

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First: compulsory screening under police powers where states screen without informed consent As Gostin notes, this has been utilized in the USA in relation to screening for tuberculosis in the workplace.77 Second: conditional screening, such as TB/HIV tests for immigrants to the USA.78 Third: routine screening with advance agreement, such as opt-in routine screening programmes targeting specific populations with consent. Fourth: routine screening without advance agreement, where targets have the ability to opt out.79 Finally: voluntary screening, where targets need to take the initiative to avail themselves of such programmes. In the UK compulsory screening is not routinely undertaken. The prospect of screening programmes has been met with concern. Gostin comments that screening ‘reveals the identity of individuals and subjects them to potential stigma and discrimination’.80 Such problems will not only apply in relation to general population screening. If screening is limited to specific groups within the population then this very action of screening by itself can be seen as problematic as this may be discriminatory given that it targets those specific groups.81 Further concerns relate to the question of ethnicity. So, for example, it might be the case that because of the higher level of certain infectious diseases in particular ethnic populations this would mean that the use of public health powers would be reflected to a greater extent in ethnic minority populations.82 If we compel screening and indeed testing then what is, of course, critical is the manner in which the information obtained was utilized and the consequences for the person tested. The ethics and efficacy of compulsory screening programmes have been much discussed. Faden, Kass and Powers have argued that: No screening program can be justified either legally or morally without first satisfying public health criteria … At the core of a public health framework for evaluating screening programs is a single criterion – the program harm to benefit ratio, where harms and benefits are understood in terms of impact on a community’s morbidity and mortality.83

Similarly Gostin has argued that as a consequence ‘public health agencies should evaluate screening programs under two broad criteria, 77 Ibid. p.  401. See also, R. R. Faden, N. E. Kass and M. Powers, ‘Warrants for Screening Programmes: Public Health, Legal and Ethical Frameworks’, in R. R. Faden, G. Geller and M. Powers (eds.), AIDS, Women and the Next Generation (New York, Oxford University Press, 1991), pp. 3–26. 78 Ibid. 79 Ibid.  80  Ibid. p. 396. 81 C. Manuel, ‘HIV Screening: Benefits and Harms for the Individual and the Community’, in R. Bennett and C. A. Erin (eds.), HIV and AIDS, Testing, Screening and Confidentiality: Ethics, Law and Social Policy (Oxford, Clarendon Press, 1999), p. 68. 82 Explanatory notes, p. 48. 83 Faden et al., ‘Warrants for Screening Programmes’, p. 7.

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whether such screening has adequate predictive value and whether it will achieve an important public health objective?’84 If in a particular situation the clinical evidence is such that screening does have such predictive value and there is a consequent public health objective and its introduction may be justified should such screening be compelled? Is it the case that screening and testing for communicable diseases should be compulsory and subject to criminal law sanctions should individuals fail to comply? Again let us return to Ashworth. Would such conduct be harmful, wrongful or a matter for public concern? Here the answer to this question would, as with surveillance, be dependent upon which communicable disease was at issue and what the consequences were of an individual refusing to be tested. Certainly the spread of a serious contagious disease where transmission would place another at risk of death appears very likely to come within that category. But delve a little deeper and the position inevitably becomes far more complex. One notable international debate occurred in the 1980s and 1990s in the UK, Europe and the USA in the context of HIV and AIDS.85 Even as late as 2003, reports suggested that the UK Government was planning to require HIV and TB screening for everyone who wanted to move to the UK.86 One concern related to the issue of cost effectiveness given the very low prevalence of HIV and AIDS in those jurisdictions. A further issue, of course, in relation to any such screening for HIV and AIDS relates to the prospect of ‘harms’ caused by consequent stigma and discrimination. Recently, UNAIDS has produced guidance on undertaking surveillance on populations most at risk for HIV. They note that such populations are vulnerable.87 As a consequence they stress that participation should be voluntary or in specific circumstances be based on unlinked anonymous testing of blood samples.88 They also stress the need for sensitivity, given the particular populations in relation to HIV/AIDS and the need to protect privacy. They suggest that wherever possible individuals should be provided with test results, information regarding HIV/AIDS, counselling, treatment and care ‘to the extent possible with local resources’89 and in addition, where appropriate, be referred to other services. Whether screening programmes should become compulsory thus becomes a matter of degree. The risk of transmission and the prospect of effectively 84 Gostin, Public Health Law, p. ­396. 85 See, e.g., Manuel ‘HIV Screening’. 86 ‘All Immigrants to Have Compulsory HIV Test as Cases Rise’, The Times, 13 February 2003. 87 UNAIDS/WHO Working Group on Global HIV/AIDS and STI Surveillance, Guidelines on Surveillance Among Populations Most at Risk for HIV, para. 1.4 (2011). 88 Ibid. para. 1.4.  89  Ibid. para. 1.4.

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stopping that disease in its tracks are both primary considerations that will be relevant. Fundamentally, what is proportionate becomes critical here. However, balanced against that would need to be the rights of the individual to bodily integrity. If individuals resist compulsory testing, then this could have the consequence that they may need to be subject to first detention and then be restrained if they are not compliant. Fear and panic should not drive such approaches. A number of human rights are applicable in this context. First, to test without consent and indeed in the face of opposition would constitute a major infringement of bodily integrity. Clinical approaches to screening and testing for communicable disease have evolved considerably over recent years. The question of whether explicit consent should be obtained in relation to HIV/AIDS led to considerable debate in the 1980s.90 In 1987, at the British Medical Association’s annual representative meeting, a resolution was passed (with 183 to 140 votes) which provided that ‘testing for HIV antibodies should be at the discretion of the patient’s doctor and should not necessarily require the consent of the patient’.91 Subsequently, a legal opinion was obtained from counsel and different views were presented.92 Shortly afterwards an article published in the British Medical Journal stated that if a HIV test was undertaken without the consent of the patient this may result in civil litigation or criminal proceedings.93 The medical profession itself clearly moved toward the provision of specific information concerning HIV testing. So, for example, by 1997 the General Medical Council (GMC) guidance on this issue is as follows: Some conditions such as HIV have serious, social and financial as well as medical implications. In such cases you must make sure that the patient is given appropriate information about the implications of the test and appropriate time to consider and discuss them.94

A further complication would need to be addressed if such ­compulsion was to be taken forward. Also, it has been suggested by Chalmers that under the Human Tissue Act 2004 it is an offence to obtain material regulated under that Act without ‘appropriate consent’. The Act 90 See, generally, discussion in J. Chalmers, Legal Responses to HIV and AIDS (Oxford, Hart Publishing, 2008), pp. 12–31. 91 See ‘The Week in Bristol,’ (1987) 295 British Medical Journal 147. 92 See further: I. Kennedy and A. Grubb, ‘Testing for HIV infection: The Legal Framework’, (1989) The Law Society Gazette, 7 February 15, 30–35. 93 See further: C. Dyer, ‘Testing for HIV: the Medico-Legal View’, (1987) 295 British Medical Journal 871. 94 General Medical Council, Serious Communicable Diseases: Guidance to Doctors (London, GMC, 1997).

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covers obtaining blood and samples. Thus, it is suggested that failure to obtain consent for a HIV test could constitute an offence under that provision.95 Clearly, treatment will be much more easily facilitated through screening and the testing process being undertaken on a voluntary basis. However, there may be some instances where testing upon a compulsory basis may fulfil the criteria set out here. First, if it is alleged that an individual had deliberately or recklessly transmitted a communicable disease to another person and is being investigated as part of a criminal prosecution. In such a situation it can be argued that testing will be inevitable. Second, in cases of an extreme pandemic or epidemic. Nonetheless, to comply with the ECHR and Article 8 (the right to privacy), any such procedures would need to be subject to a test of proportionality. As has been stated in the HIV/AIDS and human rights international guidelines of the UN: Under international human rights law, states may impose restrictions on some rights, in narrowly defined circumstances, if such restrictions are necessary to achieve goals such as public health … in order for restrictions on human rights to be legitimate, the state must establish that the restriction is … [based] on a legitimate interest, as defined in the provisions guaranteeing the rights [and] proportional to that interest and constituting the least intrusive and least restrictive measure available and actually achieving that interest in a democratic society, i.e., established in a decision-making process consistent with the rule of law.96

This is not to say however that in the past this has not been considered, notably in relation to HIV/AIDS. Screening and testing for HIV/ AIDS is something which remains highly controversial. The House of Lords Report, No vaccine no cure: HIV and AIDS in the United Kingdom in 2011, recommended that HIV testing should be offered as a matter of routine to new GP patients97 and also in the context of general and acute medical admissions.98 However, while they saw it as routine it was not seen as being a matter for compulsion. Similarly, they suggested that it should be routine and opt-out in the context of areas of medicine where there was a correlation with increased rates of HIV infection. Furthermore, it recommended that testing should be expanded into 95 J. Chalmers, Legal Responses to HIV and AIDS, pp. 18–­19. 96 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS: HIV/AIDS and Human Rights International Guidelines (New York and Geneva, United Nations, 1988), para. 82. 97 Government Response to the House of Lords Report of Session 2010–12: No Vaccine, No Cure: HIV and AIDS in the United Kingdom, CM 8190 (October 2011) para. 192. 98   Ibid. para. 181.

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the communities. It saw that HIV testing needed to move outside antenatal and genito-urinary medicine clinics. Currently, around 80 per cent of HIV tests were undertaken in those clinics.99 The Government, in its response, welcomed the developments in this area and supported increasing HIV testing as part of local health prevention strategies, notably in areas of high prevalence of the disease.100 It also noted that it was reviewing the implications of the HPA Report Time to Test101 and was developing a new sexual health policy framework.102 The Government also supported the advent of better training and education.103 What it did not do, however, is see testing here as something which should be compulsory. Recently, at international level the UN Global Commission on HIV and the Law, Risk, Rights and Health recommended that there should be abolition of all mandatory HIV-related registration, testing and forced treatment regimes.104 However, interestingly, one organization working in the area of HIV/AIDS has suggested that participation in HIV testing should become the norm in such a way to force individuals to make a positive choice not to be involved. The National AIDS Trust have argued that: It is important that testing efforts reach those most at risk from HIV and in particular those who would otherwise be diagnosed late. To do this the UK must move from reliance on its traditional ‘opt-in’ model of voluntary HIV testing, usually conducted within sexual health clinics to a more ‘opt-out’ approach (also known as provider-initiated testing) across a range of healthcare settings. This is where a HIV test is usually offered alongside other routine tests, the patient can turn down the offer but must explicitly say no. Opt-out testing in antenatal care has already proved to be highly effective in reducing mother to child HIV transmission.105

In addition, to be compliant with the framework set out here, it would be necessary to see criminal law as a technique of last resort after less invasive measures have been utilized. So, for example, ­information, persuasion and encouragement of voluntary participation would be necessary before detention. Furthermore, as above, the question would be whether the effects of criminalization would be worse than before. Would this instead lead to communicable disease being driven underground? 99   Ibid. para. ­178.  100  Ibid. p. 16. 101 Health Protection Agency, Time to Test for HIV: Expanded Health Care and Community HIV Testing in England, interim report, December 2010. 102 Ibid. at p. 16.  103  Ibid. at p. 17. 104 United Nations Development Programme New York (2012). 105 National AIDS Trust, HIV Testing Action Plan to Reduce Late HIV Diagnosis in the UK, 2nd edn (London, National AIDS Trust, 2012), pp. 4–5.

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Even if compulsory screening and testing would be introduced, that does not mean that some would not attempt to evade it. A notable example of evasion of screening of communicable disease arose in the UK in the 1990s. A surgeon, Dr Gaud, who suffered from Hepatitis B, evaded a screening, failing to follow the advice of the GMC. He continued to practice.106 When screening was undertaken he replaced his own blood with that of other patients. It was claimed though this did not establish that he had infected patients. Ultimately he was prosecuted and convicted of an offence of causing a public nuisance. While such cases are rare, nonetheless it does demonstrate the challenges of operating a compulsory system, where evasion and avoidance would need to be identified and addressed. Were compulsory screening to be introduced then it would necessarily lead to other related questions. For example, would we then need to consider the prospect of a duty to warn a third party of the risk of disease transmission, something which has never been recognized in English law.107 In the UK there is no mandatory system of contact tracing as a general rule. Nevertheless, in the case of some persons with sexually transmitted diseases, contact tracing may be undertaken.108 Further, in the case of health care professionals who have developed certain communicable diseases, there is a system of ‘look back’ studies to identify patients which those health care professionals may have treated whilst infected with those communicable diseases.109 In certain instances patients will then be informed as to the prospect of this having happened and it is suggested that they contact the relevant NHS trust. Moving to compulsory screening and then compulsory notification of contacts would necessarily have to be a disease-relative step. There is a major distinction between, for example, airborne viruses and sexually transmitted diseases. Thus, whether compulsory testing and screening are justifiable will be again highly context dependent and indeed is likely to be highly 106 See further: M. Mulholland, ‘Public Nuisance – A New Use for an Old Tool’, (1995) 11 Professional Negligence 70. 107 Smith v. Littlewood [1987] All ER 710; Palmer v. Tees HA [1999] Lloyds Rep Med 351 (CA); and see generally J. K. Mason, ‘The Legal Aspects and Implications of Risk Assessment’, (2000) 7 Medical Law Review 69. 108 This is an ancient practice. As Gostin states: ‘Sexual contact tracing probably originated in Europe in the sixteenth century with the medical inspection of suspected syphilitic prostitutes through regulations that came to be known as reglementation.’ Gostin, Public Health Law, p. 302. 109 See further: Department of Health, HIV Infected Health Care Workers: Guidance on Management and Patient Notification (London, Department of Health, 2005); Department of Health, Management of HIV-Infected Healthcare Workers: A Paper for Consultation (London, Department of Health, 2011).

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contested as a general strategy. Again returning to Ashworth, is the action or conduct the law is intending to prevent harmful, wrongful and of public concern? In some instances it may well be. Ideally, voluntary measures should always be used, but if it is an epidemic situation of a disease-threatening death and disability then the use of compulsory screening in relation to communicable diseases may then be justified – with criminal sanctions if it does not go ahead first in the case where there is a substantial risk of transmission and a substantial risk that the disease will cause death or serious disability. Perceptions of what may constitute a serious risk of transmission may change over time. So, for example, there is national guidance in the UK that stops the performance of exposure ‘prone procedures’ by health care workers who are infected by HIV.110 Worldwide it appears that there are to date still only four cases of HIV transmission from infected health care worker to patient. Recently, it has been estimated that the risk of HIV transmission to patient by the most invasive type of exposure prone procedure is between 1 in 1,672,000 and 1 in 4,680,000.111 Furthermore, modern anti-retroviral therapy has had the effect that the plasma viral load of the individual patient can be reduced to ‘a very low or undetectable level’.112 Criminal penalties could then, it is submitted, apply to those who deliberately or recklessly do not participate in some testing and screening programmes in the context of a communicable disease where the criteria were complied with.113 Nonetheless they would need to be utilized as a last resort in highly exceptional situations – one envisages perhaps a true modern plague. It is also submitted that here we should follow Ashworth’s recommendation that we should pull back from criminalization if the consequences of the measures prove worse than the initial approaches being used: mass resistance which led to the compulsion being wholly futile might be such a category. ­Treatment Just as surveillance and testing inevitably involve fundamental questions concerning respect for autonomy and individual dignity so does the question of detention and treatment consequent upon such detention. In relation to mental health care compulsion and detention is utilized 110 Ibid., Department of Health, HIV-Infected Health Care Workers: ­G uidance. 111 Department of Health, Management of HIV-Infected Healthcare Workers: A Paper for Consultation. 112 Ibid. p. 4. 113 National AIDS Trust, HIV Testing Action Plan.

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as a regulatory tool – but this is framed by tight statutory limitations and moreover today the focus is upon voluntary care as far as possible, whilst recognizing a time compulsion may be needed.114 Ideally, public health measures should not need to reach that point. Should compulsion and criminal powers be utilized here in relation to detention and treatment? Again, let us return to Ashworth’s criteria. Is it conduct which is harmful, wrongful or of public concern? The prospect of individuals transmitting disease in such a way may very well be, but this would depend on the context. Moreover, the extent to which there is need for such restrictions depends fundamentally upon the disease in question, the risk of transmission and the behaviour of the individual. The criminal law has already been utilized, for example, against those who deliberately or recklessly infect others with HIV.115 Would designated compulsory public health powers be consistent with safeguarding fundamental principles of human rights? In 1996, in their seminal article, Brazier and Harris argued that: Anticipatory intervention to restrain those rendered dangerous by disease requires evidence of the exceptional degree of that danger and of at least some impairment of the individual’s ability to exercise personal responsibility for others’ safety. Conduct which deliberately or recklessly endangers others is the proper province of the criminal justice system. It is a conclusion which we arrive at with some reluctance … 116

It is submitted that this is correct and that a case such as that of Dr Gaud cited earlier was properly the subject of a criminal prosecution. But it is suggested that in relation to the criminal law on the transmission of some serious communicable diseases it is legitimate that we should take this one stage further. It should also extend to where such harm is reasonably anticipated to occur. The analogies here with police powers in general are apposite. The police have powers to, in some instances, instigate an arrest where there is a reasonable suspicion that an offence is about to be committed. So, for example, there is no need to wait for the murder to occur if they see the offender about to strike – the police officer can intervene. The same criterion clearly applies also in the present situation.

114 See further: L. O. Gostin, P. Bartlett, P. Fennell, J. McHale and R. MacKay (eds.), Principles of Mental Health Law and Policy (Oxford University Press, 2010). 115 See further: M. Weait, Intimacy and Responsibility: The Criminalization of HIV Transmission (London, Routledge, 2007). 116 Brazier and Harris, ‘Public Health and Private Lives’, p. 187

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But we need to explore further whether utilization of compulsory detention and treatment powers are justified by reference to principles of fundamental human rights. Article 5 of the ECHR provides that: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (e) The lawful detention of persons for the prevention of the spreading of infectious diseases … 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

In the decision of the European Commission of Human Rights, in Acmanne v. Belgium in 1995, it was held that interference was necessary to protect health within a democratic society under Article 8(2) of the Convention: Therefore a restriction on a Convention right cannot be regarded as necessary in a democratic society  – two hallmarks of which are tolerance and broadmindedness  – unless, amongst other things, it is proportionate to the legitimate aim pursued … In assessing the necessity of the interference with the applicants’ private life, the Commission takes into account the reasoning in the Liege Court of Appeal … the Court held that the individual had a social duty to defer to the general interest and not endanger the health of others where his life was not in danger.117

The legitimacy of statutory limitations placed on persons with infectious diseases and whether they were compliant with the ECHR also arose in the case of Enhorn v. Sweden.118 This case concerned a homosexual man of 56 years of age who was HIV-positive. In 1990 he had passed the virus to a 19-year-old man. Under the Infectious Diseases Act 1988 (Sweden), he was told to comply with a number of criteria including informing sexual partners of his HIV status, use of a condom, limiting alcohol intake, telling health care staff of his HIV-positive status when he received treatment and, in addition, he was to see his doctor regularly. Enhorn did not comply. A court order was sought for his detention in isolation for a period of up to three months. He absconded, but he was subsequently recaptured and detained and this pattern continued over a number of years. Medical evidence was to the effect that 117 Acmanne v. Belgium (1985) 40 DR ­251. 118 Enhorn v. Sweden [2005] ECHR 56529/00; R. Martin, ‘The Exercise of Public Health Powers in Cases of Infectious Diseases’, (2009) 14 Medical Law Review 132.

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Enhorn suffered from a paranoid personality disorder, which reduced his awareness of the risk of spreading HIV. He argued that the isolation orders to which he was subject and his involuntary hospital detention were not in line with domestic law nor did they comply with Article 5(1) of the ECHR, as this was not proportionate. The first argument was rejected. The ECHR noted that there was considerable discretion given to clinicians under the 1998 Act and moreover power to the county medical officer to amend the instructions as he thought appropriate and that the Swedish courts had considered all relevant factors. The court then considered whether the detention was compliant with Article 5. It found that Article 5 was concerned both with protection of the public and in addition with the protection of the interests of the person who was being detained. To be compliant with Article 5 it had to be the case that detention itself would be seen as very much a last resort measure and something which would be utilized only after the existing measures that had been used were found to be inadequate. Here, the evidence was that this had not been the case as he had complied with requirements such as informing health care professionals that he was HIV-positive. Moreover, the court held that he did not have the attitude of intentionally or recklessly transmitting disease to others. In the period in which he had been absent from hospital, he had not infected other persons with HIV. Compulsory isolation was not here a ‘last resort’ measure in relation to the transmission of disease. Moreover, a seven-year extension of this isolation order with hospital detention for 18 months constituted an unfair balance between individual liberty and public protection and thus constituted breach of Article 5. Thus, again whether or not utilization of the criminal law to compel detention can be justified depends upon the circumstances. Certainly in the case of major pandemics restrictive powers which would not under normal circumstances ever been tolerated may be necessary in the public interest. So, for example, in relation to the SARS epidemic in 2002–2003 it has been reported that what were very restrictive control mechanisms operational in some jurisdictions were responsible for the reduction in spread of the disease.119 The Nuffield Council on Bioethics suggested that such measures ‘rank towards the top of the intervention ladder’.120 This is the type of situation in their view where ‘individual consent and the importance of avoiding intrusive interventions on the other’ may be outweighed.121 But will this satisfy the Ashworth test of criminalization, bringing it in line with other criminal law offences? We explore this further now. 119 See further: discussion in Nuffield Council, Public Health, para. ­4.57. 120 Ibid. at ­4.62.  121  Ibid.

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The procedures in relation to detention for treatment in England and Wales were reformed through regulations in 2010. In a situation in which it is proposed to impose restrictions/limitations upon individuals, things or premises there must be an application for an order to a JP.122 Thus, a JP may require a person to be detained, isolated or quarantined. The Government have stressed that the evidential thresholds required here will ensure that the principle enshrined in ECHR case law that the justification for deprivation of liberty has been ‘reliably shown’ has been met. The JP has a flexible range of powers, which vary from requiring that a person attend training to requiring detention in hospital. Where orders are made these may only last up to 28 days. There are requirements for individuals to be notified that an application has been made for an order. Provisions enable application to be made for variation or revocation of such an order. In addition, there are specific requirements placed upon local authorities in relation to assisting those persons who are made subject to an order to be able to be aware of their rights and to be provided with relevant information. All applications for orders are to be reported to the HPA. One concern in relation to the reform of the legislation expressed by some respondents was in relation to the prospect of the use of these powers in relation to HIV and other sexually transmitted infections.123 They argued that such infections should be explicitly excluded from the scope of the regulations. Alternatively, it was argued that the regulations should require a higher standard for evidence before a JP was satisfied of making an order in relation to HIV or other sexually transmitted infections. The Government, however, rejected this and stated that ‘the evidential standard is already high for all orders and we do not think it is appropriate to differentiate in this way’.124 Some stakeholders suggested that persons with HIV might be deterred from engaging with health services because of the risk that they would be made the subject of a JP order.125 The Government, however, responded by commenting that: The provisions for JP orders should not be a cause for concern for people with HIV or a sexually transmitted infection as they are only intended for possible use in rare and exceptional cases where interventions to achieve voluntary action by an individual are not successful. An order could certainly not be made solely on the basis that an individual had HIV or another sexually transmitted infection.126 122 Health Protection (Part 2A Orders) Regulations 2010. 123 Explanatory Notes, para. 8.4.  124  Ibid. para. 8.4 125 Ibid. p. ­36.  126  Ibid. para. 8.4.

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Do these new laws comply with Ashworth’s criteria? As we have seen, Article 5 of the ECHR renders some restrictions on liberty as justifiable where these are proportionate. The criminal law and compulsion should be seen as a technique of last resort. The intention from the Explanatory Notes to the regulations is that these should be very much used in this way. Thus, much will depend upon how they are utilized by individual JPs in the future. There is a further very important issue here. Exercising those powers is one thing. Continuing to use them over a period of time is another. The critical issue in terms of compulsion here will be that of the willingness of clinicians to step away if the powers are not effective.

Conclusion

The relationship between the criminal law and public health law is a somewhat uneasy one. Compulsion and contagion are no longer necessary bedfellows – to the extent to which that was ever truly the case. Containment of disease will, of course, remain a practical problem – whether or not the criminal law is used. As we have seen disease is no respecter of borders. It has been argued that criminal law compulsory powers may be justified in relation to public health, whether taking a wholly utilitarian or a deontological approach, but that, at the same time, use of the criminal law should be circumspect and limited. Ashworth’s criteria for the use of the criminal law provide us with a useful analytical tool. Surveillance is an area where de facto compulsion operates, yet subtly – few outside the clinical and epidemiological communities are truly aware of how this works. Criminal compulsion is not overtly used here as a regulatory tool, but surveillance is mandated through law. It may be that this approach is, albeit unintentionally, undermining respect for human rights. Testing is not mandated directly under public health powers, though there is the prospect that this may be ordered as part of the powers of the JP under the new Health Protection Regulations. Compulsion and treatment may also be facilitated under these powers. It has been argued that while the default position always should be to encourage voluntary participation this may not always be possible: in exceptional situations the criminal law may be necessary to facilitate compulsion. It is also emphasized that the side on which the balance falls in relation to the use of the criminal law may indeed vary from jurisdiction to jurisdiction. Use of criminal law measures need to be viewed through the prism of broader public health strategy. Here, the focus for examples for that analysis is the domestic law of England and Wales and a jurisprudential set

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of criminal law principles again rooted fundamentally within this particular jurisdiction. The same solutions may not always translate across jurisdictions, as was noted above. Moreover we live in a world consumed by considerations of ‘risk’ and there are acute dangers that any analysis of public health measures can be distorted against such a backdrop.127 What is important is that where such powers are used they are used with great caution; in a manner that is transparent, consistent and indeed reviewed on a regular basis. A crude utilitarian approach here is not sufficient but there may be circumstances where the public good mandates criminal compulsion in the public interest where the actions are necessary and proportionate. 127 Some discuss this in terms of the ‘risk society’. See U. Beck, Risk Society: Towards a New Modernity (New Delhi, Sage, 1992). See also Murphy and Whitty, ‘Is Human Rights Prepared?’.

9

Epidemiological criminology and violence prevention: addressing the co-occurrence of criminal violence and poor health outcomes Roberto H. Potter and Timothy A. Akers

The Epidemiological Criminology (‘Epi-Crim’) framework works from the fundamental hypothesis that criminal behaviours and poor health behaviours share an underlying aetiological dimension. That is, the factors that underlie individuals’ engagement in behaviours that are defined as criminal are likely to be the same factors that promote poor health outcomes among those same individuals. We hypothesize this to be one of the reasons we find so much poor health among those who are processed through the criminal justice systems. In the context of violence prevention, Epi-Crim proposes ways of linking knowledge about the aetiology and epidemiology of violent behaviour gained from criminology with the emphasis on the prevention of injury outcomes favoured by public health. Epi-Crim posits that there are structural and organizational factors that get translated into individual behaviours through a process of socialization that allows individuals to engage in violent behaviour to achieve desired ends. These socialization processes not only allow, and sometimes encourage, the use of violence, but are the same processes that lead to poor decision-making and risk-taking in regard to other health behaviours. By understanding the common aetiological domains that underlie criminal behaviours we can also understand the development of poor health-related behaviours such as substance use and risky sexual behaviours. The Epi-Crim perspective seeks to provide new ways of examining the nexus between criminal violence, injury, and other traumatic outcomes for prevention purposes at primary, secondary, and tertiary levels. We also see Epi-Crim as a way to analyze and intervene in the disproportionate levels of infectious and chronic diseases observed

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among incarcerated populations, especially sexually transmitted and blood-borne infections such as HIV and viral hepatitis.1

Distinctions among violence, criminal violence, and injury/traumatic outcomes

Like so many terms, the meaning of ‘violence’ is seemingly simple, yet operationally difficult to agree upon. Ireland and Rush define violence generally as ‘expressions of verbal, physical, social or political force’.2 Dahlberg and Krug offered the following definition of interpersonal violence: ‘the intentional use of physical force or power, threatened or actual, against another person or against a group or community that results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation.’3 This is the standard definition used by the Division of Violence Prevention at the Centers for Disease Control and Prevention (CDC). Following from Ireland and Rush,4 we need to distinguish further between violence in general and criminal violence specifically. That is, violence is not criminal unless it has been defined as criminal in a legitimate statute, rule or code. For public health purposes, the definition of violence is based on a potential or actual injury or trauma outcome. For criminological purposes, we can look at aggressive (pre-criminal or ‘at-risk’) behaviour as a precursor to engaging in violent behaviour that crosses the statutory line. In that sense, criminology and public health have always had the same broad interests in violent behaviours. In criminal justice terms, however, only violent behaviours that cross the statutory lines may be of concern to ‘street-level’ practitioners. We will return to these distinctions when we discuss prevention and intervention issues. What is interesting about criminally violent behaviour for public health purposes is that ‘criminalized’ behaviour (i.e., legally defined as 1 T. Akers and M. Lanier, ‘Epidemiological Criminology: Coming Full Circle’, (2009) 99 American Journal of Public Health 397–402; R. H. Potter and T. A. Akers, ‘Improving the Health of Minority Communities through Probation–Public Health Collaborations: An Application of the Epidemiological Criminology Framework’, (2010) 49 Journal of Offender Rehabilitation 595–609; T. A. Akers, R. H. Potter, and C. V. Hill, Epidemiological Criminology: A Public Health Approach to Crime and Violence (San Francisco, CA, Jossey-Bass, 2013). 2 C. E. Ireland and G. E. Rush, The Dictionary of Criminal Justice, 7th edn (New York, NY, McGraw-Hill, 2011), p. 484. 3 L. L. Dahlberg and E. G. Krug, ‘Violence: a global public health problem’, in E. G. Krug, L. L. Dahlberg, J. A. Mercy, A. B. Zwi, and R. Lozano (eds.), World Report on Violence and Health (Geneva: World Health Organization, 2002), pp. 1–21, p. 5. 4 Ibid.

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criminal acts) will often lead to injury or trauma for the perpetrator of the violence as well, and Reiss and Roth note that the definition utilized in the National Research Council volumes does not separate aggression from violence.5 This is an oversight we hope to avoid in the Epi-Crim perspective by providing new ways of examining the nexus between criminal violence, injury and other traumatic outcomes for prevention purposes at all levels. Criminologists have been interested in the aetiology of violent behaviour for generations. We argue elsewhere6 that violent behaviour has been a staple of criminological interest since the time of the ‘moral statisticians’, such as Quetelet.7 Once violent behaviour crosses the legal threshold into the criminal realm it enters the traditional domain of criminologists and criminal justice scientists. Again, criminologists, comprised of specialists from a range of core social science and legal disciplines, are interested in the aetiology of violence, not simply the outcome. Criminal justice scientists, on the other hand, may, as Duffee and Allan observe, be more interested in the responses of official agents of social control to violence; its prevention and control.8 Mercy and Hammond write that violence was not a dominant focus for public health epidemiologists until the 1980s.9 Strangely, the early development of public health’s interest in violence was devoid of criminological science or criminal justice practice except for assertions that other approaches had failed to stem violence and its outcomes. The declaration of violence as a public health problem was based almost exclusively on the notion of the social costs of violence and the impact on the health of victims. It was believed that applying the same research technologies from health epidemiology to the causes of violent behaviour would bring about the same results as seen with infectious diseases 5 M. R. Rand, Violence-Related Injuries Treated in Hospital Emergency Department (Washington, DC, Bureau of Justice Statistics, 1997); A. J. Reiss and J. A. Roth (eds.), Understanding and Preventing Violence (Washington, DC, National Academies Press, 1993); T. Simon, J. Mercy, and C. Perkins, Injuries from Violent Crime, 1992–98 (Washington, DC, Bureau of Justice Statistics, 2001). 6 Akers, Potter, and Hill, Epidemiological Criminology: A Public Health Approach. 7 D. R. Cressey, ‘Epidemiology and Individual Conduct: A Case from Criminology’, (1960) 3(2) The Pacific Sociological Review 47–58; A. Lindesmith and Y. Levin, ‘The Lombrosian Myth in Criminology’, (1937) 42(5) American Journal of Sociology 653–71. 8 D. E. Duffee and E. Allan, ‘Criminal justice, criminology, and criminal justice theory’, in D. E. Duffee and E. R. Maguire (eds.), Criminal Justice Theory: Explaining the Nature and Behavior of Criminal Justice (New York, NY, Routledge, 2007), pp. 1–26. 9 J. A. Mercy and W. R. Hammond, ‘Combining action and analysis to prevent homicide: a public health perspective’, in M. D. Smith and M. A. Zahn (eds.), Homicide: A Sourcebook of Social Research (Thousand Oaks, CA, Sage Publications, 1999), pp. 274–94.

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and crashes with mechanized vehicles.10 As Potter and Krider point out, however, those same approaches had been used in general crime prevention efforts for more than a decade before public health ‘discovered’ violence as a problem.11 Since the emergence of interest in violence among public health researchers, a variety of perspectives have been employed to address the health impacts of violent behaviours. While these perspectives have included ideas from the core social science disciplines, the inclusion of the interdisciplinary sciences of criminology and criminal justice has been less direct. One primary difference between the public health focus on violence and the criminological/criminal justice focus is that public health views violence as a phenomenon separated from other behaviours while criminology and criminal justice see it as one among many criminal events. Violence may be the intended outcome of a behavioural event or it may be an unintended – though potentially foreseeable  – and unwanted event. Violence may be the only criminal act in an individual’s criminal life or it may be part of a trajectory of a criminal career. Indeed, this movement toward violence as a later developing criminal behaviour is supported by the data on life-course and criminal careers.12 Table 9.1, for example, demonstrates that the reported crime rate in the US is dominated by non-violent crimes over a multi-decade period, with the violent crime rate being equivalent to about 14 per cent of the reported property crime between 1990 and 2010. It is worth noting that the violent crime rate in 2010 is 55 per cent of the rate reported in 1990, or a 45 per cent reduction over the 20-year period. Reported violent crime rates peaked in 1991 at 758.2 per 100,000 US residents and have declined fairly steadily since that time. Data from the National Crime Victimization Survey (NCVS) likewise demonstrate growth in violent victimization from 1973 (inception of the survey) to the early 1990s, then declining since. In fact, as Truman notes, there was a 43 per cent

10 D. McDonald, ‘Violence as a Public Health Issue’, (2000) 63 Trends & Issues in Crime and Criminal Justice 1. 11 R. H. Potter and J. E. Krider, ‘Teaching About Violence Prevention: A Bridge Between Public Health and Criminal Justice Educators’, (2000) 11(2) Journal of Criminal Justice Education 339–51. 12 D. S. Elliott, D. Huizinga, and S. S. Ageton, Multiple Problem Youth: Delinquency, Substance Use and Mental Health Problems (New York, Springer-Verlang, 1989); D. P. Farrington and B. C. Welsh, Saving Children From a Life of Crime (New York, Oxford University Press, 2007); M. R. Gottfredson and T. Hirschi, A General Theory of Crime (Palo Alto, Stanford University Press, 1991).

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Table 9.1 US Crime and Violent Victimization Rates, 1970–­2010* Year

Population**

Violent** Crime Rate

Violent* Victimization Total Rate

Property** Crime Rate

1970 1980 1990 2000 2006 2010

203,235,298 225,349,264 249,464,396 281,421,906 299,398,484 308,745,538

363.5 596.6 729.6 506.5 473.6 403.6

47.7 (1973)* 49.4 44.1 25.1 (2001) – 14.9

3621 5353.3 5073.1 3618.3 3334.5 2941.9

Note: Violent crimes comprise murder, forcible rape, robbery, and aggravated assault; while property crime includes burglary, larceny-theft, and motor vehicle theft. Rates are the number of reported offences per 100,000 population. *Source: J. L. Truman, Criminal Victimization, 2010 (Washington, DC, Bureau of Justice Statistics, 2011) (available at: http://bjs.ojp.usdoj.gov/content/pub/pdf/cv10.pdf). Note: The National Crime Victimization Survey was first conducted in 1973; this rate is from the first survey. See also: www.bjs.gov/content/glance/tables/viortrdtab.cfm. **Source: Federal Bureau of Investigation, Crime in the United States (1991–2010 data available at: www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-theu.s.-2010/tables/10tbl01.xls; other data are available in the same site archive files.)

reduction in total violent victimizations reported by victims between 2001 and 2010.13 Property crimes reported to the police, by comparison, showed a 43 per cent reduction between 1990 and 2010. Victims of property crimes reported a corresponding 19 per cent reduction in victimization between 2001 and 2010. Crime rates have fallen considerably in ­general terms over the past 20 years, including the peak in 1991. This is a relationship often overlooked in the violence prevention literature. To separate violent crime from other forms of crime misses a valuable relationship between crime and environment that we hypothesize has an influence on other health-related phenomenon beyond violence-associated injuries and disabilities. Epi-Crim provides a framework within which the developmental pathways of criminal behaviour are merged with the violence prevention efforts of public health. In order to understand the development of criminally violent behaviour, we believe one must understand the development of the criminal career. And, we argue, to a great extent, the 13 J. L. Truman, Criminal Victimization, 2010 (Washington, DC, Bureau of Justice Statistics, 2011).

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same factors that underlie the development of criminal careers are the same factors that lead people into behaviours that compromise their own health and that of others, especially in the case of violent behaviour and victimization.

A brief overview of the structure of epidemiological criminology

For those not well-grounded in criminological theory it may be ­necessary to provide a brief primer on the theoretical foundations of the integrative approach leading to the development of Epi-Crim. This begins with a brief overview of the scope of interest of criminology and criminal justice. There are at least three principal divisions within criminology that are of interest to us in developing Epi-Crim, formulated originally by Sutherland.14 These are the systematic analysis of the conditions under which criminal laws develop, or the sociology of law; criminal aetiology, or the scientific analysis of the causes of crime; and, penology, which is concerned with control of crime. Stated briefly, criminology is the study of law making, law breaking, and reactions to criminality. Don Gibbons expanded this definition to include a range of ‘central questions of criminological inquiry’ that included: the nature of crime and criminal behaviour; the origins of criminal law; the extent and distribution of criminality (i.e., epidemiology; to which we add victims); social structure and criminality; the origins and development of criminal acts and careers; and, social reactions to crime.15 Whether or not academic criminal justice is included within criminology is a matter of debate. Travis defines the academic field of criminal justice as the study of ‘the formal social institutions designed to respond to a narrowly defined set of social control needs. Crime control is the primary purpose of the criminal justice system, but there are other latent functions also served by criminal justice.’16 Similarly, Duffee and Allan (2007) state that ‘criminal justice science is the study of governmental social control premised on punishment or blameworthiness … But the domain of criminal justice study would be broader than that. Very importantly, it would include the study of societal selection of social controls’ (p. 8, emphasis in original). The object of each of these core disciplinary questions is variation in the nature and amount of social control. Continuing, Duffee and Allan write: ‘In short, criminal justice 14 E. H. Sutherland, Principles of Criminology, 4th edn (Philadelphia, Lippincott, 1 ­ 947). 15 D. C. Gibbons, The Criminological Enterprise (Engelwood Cliffs, NJ, Prentice-Hall College Division, 1979), p. 6. 16 L. Travis, Introduction to Criminal Justice, 4th edn (Cincinnati, OH, Anderson Publishing Company, 2001), p. 4.

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as an academic discipline is the study of the domains of lawmaking and law enforcing, leaving the study of law-breaking to the discipline of criminology’ (p. 8, emphasis in original). For something to fall within the domain of Epi-Crim, then, it must acknowledge the primacy of the legal definition of a behaviour as criminal (or delinquent). It is when a behaviour that has been defined as criminal is associated with injury to a perpetrator and/or victim, as in the case of either criminal violence, or where such criminalized ­behaviours are associated with acquisition or transmission of a disease as a result of factors associated with the criminal behaviour, that the Epi-Crim perspective can be invoked. Since many of these injuries and disease states among offenders do not come into official knowledge until they are identified by personnel associated with correctional facilities, the area of correctional health care (including mental health and substance abuse treatment) is included within the Epi-Crim perspective. Likewise, the results of injuries and disease transmission to the victims of criminal behaviours are also of interest to Epi-Crim. The impetus for the refinement of the Epi-Crim perspective grew from the experiences of Akers and Potter while employed at the US Centers for Disease Control and Prevention (CDC). Both were educated, at least partly, as criminologists and found the lack of utilization of theories from criminology to address violence and sexually transmitted and blood-borne disease transmission puzzling. This was especially true given that several of the models on which HIV prevention efforts were based were taken from the substance abuse treatment field, and were often developed on criminal justice-involved populations. For about a decade, the two worked to go beyond Lanier’s definition of EpiCrim as ‘the explicit merging of epidemiological and criminal justice theory, methods and practice.’17 This was effectively the definition with which Akers had broached the Epi-Crim perspective to Potter in 1999. We have expanded our conceptualization of Epi-Crim as a ‘framework’ that focuses on the study of those dynamic variables, factors, and/ or characteristics that contribute to both criminogenic and health risk, i.e., the common causal pathways. Such variables include biological, psychological, and social factors  – a bio-psycho-social approach (see Figure 9.1).18 The scope of variables includes geospatial, legal, and social boundaries. Behaviour is a bio-psycho-social product; law is a social product. Without law there is no crime, only behaviour judged to be ‘harmful’ or ‘deviant’ by some group. Our working definition of Epi-Crim involves 17 M. Lanier, ‘Epidemiological Criminology (EpiCrim): Definition and Application’, (2010) 2 Journal of Philosophical and Theoretical Criminology 63–103, at 72. 18 Akers, Potter and Hill, Epidermiological Criminology: A Public Health Approach.

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Individual (Micro)

Health behaviour

Biologic

Socio.

Environmental

Familial/Community (Meso)

Criminal behaviour

Psycho.

Societal/Global (Macro/Structural)

­

Behavioural disparities

Figure 9.1 The Epidemiological Criminology Model

an integration of the theories, methods, practices, and technologies used in public health and criminal justice that incorporates the broader interdisciplinary framework of epidemiology and criminology. Epi-Crim thus focuses on what we can know about the development of and distribution of behaviours that are labelled ‘violent’ among the individuals who engage in them (micro level). It also examines the social settings in which the expression of violence is either facilitated or censored (meso level). Finally, it examines the social structural processes by which such behaviours come to be defined as criminal acts, as opposed to simply bad behaviour (macro level). Like any positivist science, it then seeks to find ways to either prevent initially or after-thefact violent behaviours. Being grounded in a ‘softer’ positivism, however, Epi-Crim recognizes that values other than those of the scientific community must be brought to bear on the issue of violence.

The theoretical underpinnings of epidemiological criminology

As indicated in Figure  9.1, Epi-Crim seeks to integrate explanations of criminal and poor health behaviours across the micro (individual), meso (group), and macro (societal) levels of analysis in order to prevent

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and control patterns of criminal behaviour and associated health outcomes. Linking these three levels of analysis is accomplished through Giddens’ concept of ‘structuration’,19 or the reciprocal interplay of social and individual activity. While there is not space in this chapter to fully explain the process, we stress the role of meso-level associations in which individuals learn social norms, affected by both individual characteristics and structural constraints. Of course, chief among those structural constraints are definitions of both violence and criminal violence. Our theoretical base is grounded in the work of the ‘Chicago School of Sociology’, particularly in the work of Edwin Sutherland on ‘differential association’.20 The radical notion in Sutherland’s thesis about the process of a person becoming a ‘deviant’ was that such non-conforming behaviour is learned – just like any other socially acquired behaviour. In a series of nine statements, Sutherland outlined the process by which an individual learns an excess of motivations and techniques favourable to law breaking rather than law abiding. The second radical concept involved the importance of intimate groups (associations) in the learning and maintenance of these ‘differential’ values favourable to law breaking. Three decades later, Burgess and Akers21 re-framed the differential association approach in terms of principles of operant learning theory. Akers has continued refining this approach into differential learning theory to the present.22 Jessor and Jessor provided an early glimpse into the co-occurrence of delinquent behaviour and a variety of behavioural problems with adverse health outcomes.23 For example, they noted associations between delinquent behaviour and substance use, all of which was illegal at the time because of the juvenile’s status. These associations were confirmed in later work by Jessor and colleagues.24 Elliott, Huizinga, and Ageton observed similar associations, and linked initiation of substance use and trafficking behaviours to the onset of violent behaviours among 19 A. Giddens, The Constitution of Society: Outline of the Theory of Structuration (Berkeley, University of California Press, 1984). 20 E. H. Sutherland, Principles of Criminology, 3rd edn (Philadelphia, Lippincott, 1939). 21 R. L. Burgess and R. L. Akers, ‘A Differential Association-Reinforcement Theory of Criminal Behavior’, (1966) 14 Social Problems 128–47. 22 R. L. Akers, Social Learning and Social Structure: A General Theory of Crime and Deviance (Boston, MA, Northeastern University Press, 1998). 23 R. Jessor and S. L. Jessor, Problem Behavior and Psychosocial Development (New York, Academic Press, 1977). 24 J. E. Donovan, R. Jessor, and F. M. Costa, ‘Syndrome of Problem Behavior in Adolescence: A Replication’, (1988) 56(5) Journal of Consulting and Clinical Psychology 762–65.

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their longitudinal sample of youths.25 They also observed that violent behaviour tended to be a later on-set behaviour in relation to other delinquent behaviours. Ron Akers and colleagues applied the operant learning version of differential association to a study of adolescent smoking in a mid-western area of the US and provided one of the earliest tests of intimate group influence on smoking and delinquent behaviours including acts that were defined as criminal (delinquent).26 Thus, we believe that the ideas behind the structurating process which link the individual-level factors with structural-level constraints on criminal behaviours, including criminal violence, are not new; only the explicit links to the health-related outcomes of criminal violence are unique. Farrington and Welsh have provided a systematic review of studies of risk and protective factors for delinquency grouped by categories of individual psychological, family, peer, school, and neighbourhood environmental factors.27 Among the individual-level factors identified were: low intelligence, hyperactivity-related disorders, impulsivity, risk-taking, internalizing disorders, early history of aggressiveness, and early initiation of and cognitive support for delinquent activities. The debates among criminologists on the relative roles played by socialization28 and their interaction with biological factors29 on self-control are also a key consideration for Epi-Crim. We place the issue of self-control over behaviours that produce violence and other risky behaviours at the core of considering why many criminal behaviours are associated with poor health outcomes. At the family level, Farrington and Welsh identified parental criminality, poor behaviour management by parents, child maltreatment, low parent–child involvement and interaction, exposure to high levels of family and marital conflict, and early separation from parents as consistent risk factors. Delinquent siblings and peers are also strong risk factors for delinquent behaviour, along with gang membership. Educational attainment is a risk factor that carries over into adult criminality in a direct manner.30 The school-associated risk factors for delinquency identified in the Farrington and Welsh review include 25 Elliott, Huizinga, and Ageton, Multiple Problem ­Youth. 26 R. L. Akers, M. D. Krohn, L. Lanza-Kaduce, and M. Radosevich, ‘Social Learning and Deviant Behavior: A Specific Test of a General Theory’, (1979) 44 American Sociological Review, 635–55. 27 Farrington and Welsh, Saving Children From a Life of Crime. 28 M. R. Gottfredson and T. Hirschi, A General Theory of Crime (Palo Alto, Stanford University Press, 1991). 29 K. M. Beaver, J. P. Wright, and M. Deisi, ‘Self-Control as an Executive Function: Reformulating Gottfredson and Hirschi’s Parental Socialization Thesis’, (2007) 34 Criminal Justice and Behavior 1345–61. 30 B. Western, Punishment and Inequality in America (New York, Russell Sage Foundation, 2007).

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academic failure, low attachment to school, truancy, and/or dropping out of school. Moving to the wider social environment of the neighbourhood, the likelihood of delinquent behaviour is increased by living in a neighbourhood where adults are involved in crime, and where there is low social cohesion in the community. Poverty remains a strong risk factor at the neighbourhood and family levels. We note the continuing debates within the broad area of criminology over whether the risk factors associated with criminality are relatively fixed or flexible. Here the work of Moffitt,31 Gottfredson and Hirschi,32 Dean, Brame, and Piquero,33 and France and Homel34 provide empirical evidence of the various ‘pathways’ to criminal behaviours and desistence patterns from crime. As will become more evident in the subsequent discussion of ‘criminogenics’, we are most interested in what Moffitt has termed ‘life-course persistent’ offenders rather than the ‘adolescent-limited’ offenders, though both may be associated with injury or disease acquisition/transmission outcomes. Because Epi-Crim is a variant of criminology as an area of study, we believe it is necessary to situate violence in three domains. The first domain is the aetiology of violent behaviour in general. The essential question here is why people resort to violence as a behaviour in the first place, regardless of the level of violence employed. The second domain is the transition from less than criminal violence into criminal violence (and various levels within the justice system; for example misdemeanour/summary versus felony/indictable). Finally, from the criminal justice science perspective, the third domain focuses on why societies and institutions choose to react to violent behaviour employing the criminal justice system versus something like the public health, regulatory or educational systems. One additional comment may be necessary here. Public health approaches to violence have rarely made the distinction among violence, criminal violence, and the authorized use of violence.35 Exceptions include unsubstantiated perceptions of official violence against public health-defined ‘vulnerable populations’, and generally fall within 31 T. E. Moffitt, ‘Adolescent-limited and Life-course-persistent Antisocial Behavior: A Developmental Taxonomy’, (1993) 100 Psychological Review 674–701. 32 Gottfredson and Hirschi, A General Theory of Crime. 33 C. W. Dean, R. Brame, and A. R. Piquero, ‘Criminal Propensities, Discrete Groups of Offenders, and Persistence in Crime’, (1996) 34(4) Criminology 547–74. 34 A. France and R. Homel, Pathways and Crime Prevention (Cullompton, Willan Publishing, 2007). 35 J. A. Mercy, M. L. Rosenberg, K. E. Powell, C. V. Broome, and W. L. Roper, ‘Public Health Policy for Prevention Violence’, (1993) 2(4) Health Affairs 7–29; Mercy and Hammond, ‘Combining action and analysis to prevent homicide’; Dahlberg and Krug, ‘Violence: a global public health problem’.

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criminal behaviour categories themselves.36 This may stem from the focus on the outcomes of violence in terms of injury and trauma. Both criminology and criminal justice science recognize that the State authorizes certain agents of official social control to employ up to and including deadly force in the protection of citizens. For this reason, Epi-Crim focuses on the aetiology of criminally violent behaviour among the general population. We view the authorized use of violence as a means of social control to be another area where the Epi-Crim perspective may be employed, but to date has not been.

Criminogenics: a missing dimension in public health approaches to violence

Public health approaches tend to primarily focus on populations. Criminal justice processes focus on individual offenders and victims, especially in the US. However, when it comes to behaviour change, both street-level public health and criminal justice prevention interventions tend to focus on individuals. Public health tends to do so from the general ‘rational actor’ perspective, while criminologists have moved to focus more on the ‘criminogenic’ elements of patterned criminal behaviour.37 This might lead to some tension among the various fields observing violence in general and specific forms of violence in particular. ‘Criminogenics’ refers to the factors that have been demonstrated empirically to successfully predict those who are likely to engage in sustained patterns of criminal behaviour.38 Please note that criminogenic risk is not applicable to the one-off commission of a criminal act, but it refers to patterned criminal behaviour. As we proceed to discussing those most likely to perpetrate criminal violence, criminogenics become important. Criminogenics are generally broken down into the components of criminogenic risk factors and criminogenic needs. Within the criminogenic factors we further differentiate between ‘static’ and ‘dynamic’

36 H. Cooper, L. Moore, S. Gruskin, and N. Krieger, ‘Characterizing Perceived Police Violence: Implications for Public Health’, (2004) 94(7) American Journal of Public Health 1109–18. 37 R. H. Potter and J. W. Rosky, ‘The Iron Fist in the Latex Glove: The Intersection of Public Health and Criminal Justice’, (2012) 38(2) American Journal of Criminal Justice 276–88. 38 D. A. Andrews and J. Bonta, The Psychology of Criminal Conduct, 5th edn (New Providence, NJ, Matthew Bender & Company, Inc., 2010); C. T. Lowenkamp, A. M. Holsinger, and E. J. Latessa, ‘Risk/Need Assessment, Offender Classification, and the Role of Childhood Abuse’, (2001) 28(5) Criminal Justice and Behavior 543–63.

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risks. Static risks are those background characteristics of an individual that cannot be altered. For example, one’s natal sex category generally will not be altered (though one may disagree with it and seek sex reassignment). Being a natal male is probably the most consistent static risk factor in becoming criminal. There is substantial literature on the various theories about why this is.39 Having a prior criminal record is one of those static risk factors that can grow, but generally is not open to reduction (other than through administrative procedures or pardon). There are certain physiologically based static factors that also reduce self-control abilities and are expressed through aggressive and violent behaviours. Foetal alcohol syndrome provides an excellent example of how a physiological exposure beyond the control of the individual can lead to a static risk factor, such as anger control. Dynamic risk factors (also known as ‘criminogenic needs’) are those needs we can attempt to modify through a variety of bio-psycho-social techniques. Andrews and Bonta state that satisfaction of dynamic risk factors should produce lower criminal behaviour following an intervention.40 Dynamic risk factors/criminogenic needs include items such as educational attainment and employment, family/relationships, leisure/ recreation activities, pro-criminal companions, substance use problems, pro-criminal attitudes and orientations, and general patterns of anti-social behaviours. Dynamic risk factors are variable in their speed of change and stability. Some risk factors take more time to change than others, while some acute dynamic risk factors can change with a change in environment or immediate events (for example anger responses). The assessment of criminogenic factors has developed from clinical approaches to more objective or actuarial models over the past few decades. In the most recent generation of criminogenic assessment, Andrews and Bonta have added the concept of ‘responsivity’ to the risk-criminogenic need formula. In their formulation, risk suggests who to treat (and how much treatment is needed), need tells us what to treat, and responsivity tells us how to treat. Responsivity encompasses both general and specific approaches. General approaches are associated with learning new attitudes and behaviours through ­cognitive-behavioural programs applicable to any behaviour change. Specific approaches 39 Gottfredson and Hirschi, A General Theory of Crime; K. L. Hayslett-McCall and T. J. Bernard, ‘Attachment, Masculinity, and Self-control: A Theory of Male Crime Rates’, (2002) 6(1) Theoretical Criminology 5–33; S. Tomsen, ‘Masculinities, crime and criminalisation’, in T. Anthony and C. Cuneen (eds.), The Critical Criminology Companion (Annandale, NSW, Hawkins Press, 2008), pp. 94–104. 40 Andrews and Bonta, The Psychology of Criminal Conduct; C. T. Lowenkamp, A. M. Holsinger, and E. J. Latessa, ‘Risk/Need Assessment, Offender Classification, and the Role of Childhood Abuse’, (2001) 28(5) Criminal Justice and Behavior 543–63.

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address criminogenic needs of an individual based on the results from criminogenic assessment tools. Responsivity is, in turn, based on concepts from models such as the stages of change or ‘transtheoretical model’.41 These approaches were developed in the substance abuse treatment field and then applied to the field of HIV and other sexually transmitted diseases/infections. The basic idea is that interventions will work best when the individual receiving them is at a point in their readiness for change that makes them receptive to the intervention. Throwing an intervention at someone that does not match their current state of readiness for change is wasting valuable resources. Matching intervention to stage of change readiness and receptiveness allows us to move the client along toward the eventual goal of no further criminal activity, cessation of substance use, or decreased sexual risk-taking. In short, meeting the client where she/he is at this point in time to move toward the desired goal. Here lies a key difference between a criminological/criminal justice science and public health approaches to an issue such as violence prevention. Public health approaches to violence prevention have tended to focus on universal prevention methods through educational efforts. Criminal justice approaches (informed by criminology) have tended to rely on the deterrent power of criminal penalties for commission of criminal violence. Epi-Crim requires that we move beyond such stereotypical characterizations of these two domains.42 For purely primary prevention purposes, universal, educational approaches are favoured, blending both knowledge of the impact of victimization on the victim and the penalties associated with commission of violence. Once we move into the realms of secondary and tertiary prevention, however, we see the need to bring in quality criminogenic assessment to determine the level of response required to effectively achieve reductions in criminogenic risk. This approach is making broad headway in the criminal justice practice and academic realms. It seems to be missing completely from the public health approach. For the ­Epi-Crim perspective, the hypothesis here is that intervention on the criminogenic need will produce positive outcomes in both the perpetration of violence, as well as the potential injury and trauma outcomes 41 J. Prochaska and C. C. DiClemente, ‘Transtheoretical Therapy: Toward a More Integrative Model of Change’, (1982) 19(3) Psychotherapy: Theory, Research & Practice 276–88. 42 Potter and Krider, ‘Teaching About Violence Prevention’; R. H. Potter, J. E. Krider, and P. McMahon, ‘Examining Elements of Campus Sexual Violence Policies: Is Deterrence or Health Promotion Favored?’, (2000) 6(12) Violence Against Women 1345–62; Potter and Rosky, ‘The Iron Fist in the Latex Glove’.

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associated with the victim, and potentially the perpetrator of violence. We now turn to a discussion of the victim in violence prevention from the Epi-Crim perspective.

Defining victims: individuals, classes, and beyond

A victim must exist for the Epi-Crim perspective to be applied. In criminal law, as it happens, there is always a victim  – the State (people, Crown, etc.), even when it appears there is no direct victim such as an individual. In this sense, there are no ‘victimless crimes’.43 It was the apparent disregard for the individual victims of crimes by prosecutors and defence attorneys in the mid to late 1900s that fuelled the ‘victims’ rights’ movement and led to the ‘discovery’ of victims by academic criminologists/criminal justice scientists and public health since the end of World War II. In this sense, the victims’ rights movement was part of the context of various human and civil rights movements. As noted earlier, the Epi-Crim perspective to violence prevention focuses on both the characteristics of perpetrators and victims. There is currently no equivalent of criminogenics for victims beyond a vague ‘risk’ notion. Following a more interactionist approach (relying heavily on social interaction and interpretation),44 we believe there are characteristics of individuals that interact with environmental opportunities to increase the likelihood that a person will become the victim of violence. This idea returns to the original studies of victimization by Mendelsohn,45 seeking to identify the characteristics of ‘victimity’. Victimity is contrasted with criminogenics, the study of characteristics of criminals. Of course, seeking to identify commonalities among the victims of violent behaviour will strike some as ‘victim blaming’; though Schneider argues this charge is mostly groundless.46 A scientific approach to victimization should address the common social and physical environments of victims and offenders. It should also address common and different psychological states between victim and offender. Mendelsohn’s 1947 essay titled, ‘New Bio-Psycho-Social Horizons: Victimology’, captured some of the basic ideas underlying Epi-Crim. That is, victims and 43 E. M. Schur, Crimes Without Victims (Engelwood Cliffs, NJ, Prentice-Hall, Inc., 1965). 44 J. A. Holstein and G. Miller, ‘Rethinking Victimization: An Interactional Approach to Victimology’, (1990) 13(1) Symbolic Interaction 109–22. 45 H. J. Schneider, The Present Situation of Victimology in the World. The Victim in International Perspective (H. J. Schneider, Berlin, DeGruyter, 1982). 46 ibid.

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victimization are products of the interactions among many factors in society. Understanding the nature of these relationships is still a key to crime prevention, especially the prevention of violent crimes, and victim restoration. Even Marxist-inspired criminologists developed an interest in the victims of ‘everyday crime’47 during the civil rights era. ‘Left-Realist’ and other ‘critical criminologists’ began to study seriously the impact of criminal victimization among the working classes, not simply the exploitation of the workers by the capitalist class. ‘Crime hurts’ became a rallying cry.48 Documenting the ‘real’ impact of crime on working class populations drove a new examination of victimology, with special interest in the victim–offender nexus in working-class communities. Our primary Epi-Crim hypothesis with regard to victims of violence is that there are predictable characteristics that differentiate those at greater risk of victimization from those whose likelihood of victimization is lower. We believe this is especially true of those who experience multiple violent victimizations over time. In no way would we see this as victim blaming. Rather, we see this as a necessary step in developing violence victimization prevention programmes based on empirical evidence. Combined with knowledge about the criminogenics of violence perpetration, this knowledge can lead us to look at situational factors that facilitate or hinder the occurrence of violent behaviour.

Structural, meso, and individual levels in preventing violence

The discussion to this point has focused primarily on individual-level factors associated with the commission of criminally violent acts and being a victim of such acts. As alluded to earlier in the discussion of the multi-dimensionality of the Epi-Crim perspective, the aetiology of criminal violence is as important as the epidemiology of such violence (see Figure 9.1). At the social–structural level, we must begin from the realization that all governments reserve the right to utilize violence for, at least, the protection of their citizens and other interests. Such rights are also extended to law enforcement agencies of various levels to protect citizens and residents. At the institutional/structural/meso level, then, violence is a socially approved tool of governance – within the limits placed 47 I. Taylor, P. Walton, and J. Young, The New Criminology (New York, HarperCollins, 1973). 48 J. Young, ‘The failure of criminology: the need for a radical realism’, in R. Matthews and J. Young (eds.), Confronting Crime (Thousand Oaks, CA, Sage, 1986).

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upon its use. We all hope the use of violence by those with the authority to order its use is made judiciously. However, we must approach the topic of preventing criminal violence from the reality that we as citizens give at least tacit approval to its utilization. At the more proximal organizational level (meso), we find that support for and against the use of violence in general and criminal violence in specific varies across social groups. At this level of analysis and prevention effort, Epi-Crim tends to favour social learning approaches,49 as well as varieties of control theory.50 That is, definitions of the acceptable use of violence to solve problems are learned in smaller groups and communities that will either hinder or facilitate the likelihood that a given individual will utilize violence. The learning may justify the use of violence in certain situations and/or against specific categories of persons or groups. Along with this will come the various ‘techniques of neutralization’51 and ‘vocabularies of motive’52 that are used to justify the use of violence. In short, we see the prevention of criminal violence as behavioural learning that occurs in intimate groups first, and less intimate groups over time. Those same groups are targets for universal prevention efforts, but may require more finely tuned targeted intervention themselves to short-circuit the continuation of beliefs favourable to the use of violence, especially criminal violence. The individual remains the focus of efforts to prevent the expression of violence in general and criminal violence specifically. However, the individual cannot be totally divorced from the social settings in which s/he behaves. Thus, the Epi-Crim perspective calls for violence prevention programmes at the secondary and tertiary levels that are more focused on the risk–need–responsivity principles of criminogenics. Without this dimension of attention it is unlikely that we will reduce criminal ­v iolence beyond the historically low levels most western democracies enjoy early in the twenty-first century.53

49 Akers, Social Learning and Social Structure; Sutherland, Principles of Criminology, 4th edn. 50 T. Hirschi, Causes of Delinquency (Berkeley, CA, University of California Press, 1969); Gottfredson and Hirschi, A General Theory of Crime. 51 G. M. Sykes and D. Matza, ‘Techniques of Neutralization: A Theory of Delinquency’, (1957) 22(6) American Sociological Review 664–70. 52 D. Scully and J. Marolla, ‘Convicted Rapists’ Vocabulary of Motive: Excuses and Justifications’, (1984) 31(5) Social Problems 530–44. 53 A. Blumstein and J. Wallman, The Crime Drop in America (New York, NY, Cambridge University Press, 2006); F. E. Zimring, The Great American Crime Decline (New

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Levels of organizational/occupational interest in violence prevention and interventions

Potter and Rosky have begun to differentiate levels of interest in the intersection of health and criminal outcomes consistent with the EpiCrim perspective.54 Criminology, unlike public health and criminal justice, is the most academically constrained of the specialties. In the US, at least, there are very few occupational titles that include ‘criminologist’ outside the academic and policy-related ‘think tank’ arenas. For public health and criminal justice, there are academic programmes and research programmes, policy-related government and non-governmental agencies, as well as street-level (practice) activities in the two domains. At the academic level, criminology, criminal justice science, and public health all share ‘core’ social science disciplines, research methods and analytic techniques. At the street level, particularly in corrections, the full complement of these specialty areas come together, including direct health care. Thus, Potter and Rosky note that all three domains operate and have interests at the academic level, but only public health and criminal justice have policy-level and street-level interests. Epi-Crim seeks to provide a bridge from the academic to the street level, and hopefully influence the policy arena.

What does epidemiological criminology offer to violence prevention?

Injuries aside, it is a common observation that those who pass through correctional facilities have a disproportionately high disease burden across the range of infectious and chronic diseases.55 Many of these diseases and injuries are associated with substance abuse and other behaviours that place those committing criminal acts and their victims at risk of disease acquisition and/or transmission. Thus, the domains York, NY, Oxford University Press, 2007); Federal Bureau of Investigation, Crime in America (2011), available at: www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/ crime-in-the-u.s.-2010/violent-crime/violent-crime; Home Office, Crimes Detected in England and Wales 2010/11 (2011), available at: www.gov.ukgovernment/publications/crimes-detected-in-england-and-wales-2010-to-2011; J. L. Truman, Criminal Victimization, 2010 (Washington, DC, Bureau of Justice Statistics, 2011). 54 Potter and Rosky, ‘The Iron Fist in the Latex Glove’. 55 L. M. Maruschak, HIV in Prisons, 2001–2010 (Washington, DC, Bureau of Justice Statistics, 2012); Akers, Potter, and Hill, Epidemiological Criminology: A Public Health Approach; National Commission on Correctional Health Care, The Health Status of Soon-to-be-Released Inmates: A Report to Congress, Volume 1 (Chicago, IL, National Commission on Correctional Health Care, 2004).

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of health addressed in the Epi-Crim perspective are as broad as those encountered in any health-related field. We envision Epi-Crim as first and foremost an analytical perspective or paradigm to help integrate seemingly disparate perspectives that are affected by the co-occurrence of poor health and criminal behaviours. In that sense, it offers few direct new hypotheses or programmes. Rather, it examines the pre-existing hypotheses and theories about poor health and criminal behaviours to integrate them to either prevent or ameliorate outcomes in these two domains simultaneously. Our core hypothesis remains that the same risk dimensions underlie both poor health and criminal behaviours. These include substance use, commodification of sexual behaviour, as well as injuries suffered in the commission of or as the victim of criminal acts. This raises the question of whether efforts to prevent criminal behaviour will produce better health outcomes than concentrating on health outcomes alone. Conversely, the question arises as to whether programmes to reduce health risk will reduce criminal behaviour, as well. Is it sufficient to focus preventive efforts on only one of those domains to affect the likelihood of both occurring?. If so, which domain should be targeted remains a key empirical question for us. At the levels of secondary and tertiary prevention, when scarce social resources are available, can we most effectively target one domain or the other to reduce subsequent recidivism in both health and criminal behaviours? Can we utilize prevention effectiveness methodologies to better ascertain the impacts of intervention on one domain alone versus both to measure these questions or does standard social science methodology carry the day? These questions go to the heart of social and behavioural science theory and methods in relation to health and criminal behaviours. We would argue they are rarely considered together. Our hope is that by expressly linking these two undesired social outcomes we will provide a new intellectual space to synergize collaborations across academic disciplines, street-level agencies and organizations, and just perhaps, social policy. That is the promise we believe Epi-Crim brings to the area of criminal violence prevention, as well as other areas of intersection between health and crime concerns. The criminal law is often a blunt instrument employed as both a preventive (deterrence), and a response. As Duffee and Allan note, a key question is why we employ criminal law instead of other approaches, such as public health.56 As Potter and Krider point out, there is little 56 Duffee and Allan, ‘Criminal justice, criminology, and criminal justice t­ heory’.

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difference between the general crime prevention efforts in criminal justice and the public health approach to violence prevention beyond a specific focus on violence in the public health domain.57 If criminal justice preventive efforts are effective, we should expect to see reductions in mortality and morbidity associated with criminal violence over time. Likewise, if public health interventions are effective, we should see reductions in criminal violence after their implementation. This is an empirical question; one clouded by the similarities among interventions. Epi-Crim is a nascent framework for examining the intersections between public health and criminal justice/criminology. We view it as a potential point of synergy for exploring questions such as whether prevention efforts focused on criminal assaultive behaviours are more effective at reducing sexual assaults than efforts designed to reduce sexual harassment; whether it is more effective to focus on sexual assault prevention to reduce transmission of HIV, rather than expect HIV prevention efforts to reduce sexual assault. In short, do programmes that address the prevention of criminal behaviours produce reductions in health outcomes more efficiently than programmes that address health behaviours reduce criminal behaviours? Are such potential effects as robust for chronic and infectious diseases as they might be for violence-related injuries and disabilities? That is, if behaviours such as substance use and other learned behaviours associated with criminal behaviour are targeted, will they ‘pay-off’ in health benefits as much or more as they do for violence-related injuries and disabilities? These are the sorts of empirical questions to which we hope researchers and programme developers can apply an Epi-Crim framework.

Conclusion

We argue that Epidemiological Criminology is more than ‘the explicit merging of epidemiological and criminal justice theory, methods and practice’.58 It involves understanding the common causal pathways that lead to criminal behaviours and those disease, injury, and disability outcomes associated with criminal behaviours. This chapter has applied our understanding of those pathways in the area of criminal violence and victimization to stimulate thinking about ways of using this 57 Potter and Krider, ‘Teaching About Violence ­P revention’. 58 Lanier, ‘Epidemiological Criminology’.

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perspective to develop more effective violence prevention programmes. We stress that this is a first look at something we hope violence prevention researchers across disciplines can utilize to strengthen their efforts and develop further our understanding of the linkages among aggression, criminal violence, and a host of disease, injury, and disability outcomes.

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Forensic epidemiology: strange bedfellows or the perfect match? Can public health and criminal law work together without losing their souls? Zita Lazzarini



Introduction

In 2011, the crime drama CSI: Crime Scene Investigation received the International Television Audience Award for the most watched television show for the fourth time.1 CSI is only one example of a popular and growing genre of crime scene procedurals that include, in varying degrees, characters or institutions that use ‘science’ to solve grisly crimes. These dramas feature characters with expertise in scientific fields from pathology, toxicology, microbiology, and genetics, to archaeology, anthropology, ballistics, and botany. Although American juries, and by extension many American television viewers, have been notoriously intimidated or bored by science and scientific evidence in the past, CSI and other shows incorporate forensic work in all these fields using language and visual cues that hold viewers’ attention and make them feel like they understand and can rely on the science.2 Science, as characterized by these dramas, is unequivocal and infallible. Consequently, law enforcement can turn to science to find the truth when faced with questions of identity, causality, guilt and innocence.3 The ‘CSI effect’ cited by journalists, prosecutors, and defence lawyers, may have changed juries’ expectations of what can and must be

1 B. Gorman, ‘CSI: Crime Scene Investigation’ is the Most Watched Drama Series in the World. Popular Drama Wins Prestigious International TV Audience Award, Presented by Monte-Carlo TV Festival and Eurodata TV Worldwide, Press Release (2011). Available at: http://tvbythenumbers.zap2it.com/2011/06/13/csi-crime-sceneinvestigation-is-the-most-watched-drama-series-in-the-world/95460/. 2 G. Cavender and S. K. Deutsch, ‘CSI and moral authority: The police and science’, Crime Media Culture 3 (2007), 67. 3 Cavender and Deutsch, ‘CSI and moral authority’, 74–75.

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demonstrated in order to convict a defendant,4 leading juries to expect, if not demand, ­scientific analysis of physical evidence. Some qualitative studies have even shown an impact on the behaviour of judges, defence attorneys, and prosecutors.5 The popularity of these shows may have had some positive impact on the public’s interest in science and even their understanding of crime investigations.6 However, the shows do not provide an accurate picture of the use of public health sciences as forensic tools, nor the possible pitfalls and misunderstandings that introduction of scientific testimony can create.7 This chapter describes the emerging field of forensic epidemiology and explores the advantages and disadvantages of collaboration between law enforcement and public health. First, it defines the term ‘forensic epidemiology’ as used since the late 1990s and distinguishes the public health focus of that term for this chapter. Second, it reviews some examples of investigations that utilized forensic epidemiology. Third, it explores the different cultures that forensic epidemiology brings together – public health sciences and law enforcement. Fourth, it examines some of the legal challenges that public health personnel face when cooperating or conducting concurrent investigations with law enforcement. Fifth, the chapter considers the possible risks and benefits to the public health mission from such cooperation. Finally, it describes some future directions for forensic epidemiology and draws conclusions about the ongoing relationship between public health and law enforcement. Although most of the examples used are from US jurisdictions, their relevance to other countries and legal systems are considered.

4 M. Wojdacz. ‘The “CSI Effect”: Juries Demand More Evidence’, Legalzoom, September 2008. Available at: www.legalzoom.com/everyday-law/courtroom/csi-effect-juriesdemand; S. Doughton, ‘Forensic scientists take the spotlight thanks to crime dramas’ ­popularity’, The Seattle Times, February 19, 2006, Available at: http://community.seattletimes.nwsource.com/archive/?date=20060219&slug=csiseattle19m. 5 M. J. Watkins, ‘Forensics in the media: Have attorneys reacted to the growing popularity of forensic crime dramas?’, unpublished MA thesis, Florida Sate University (2004), pp. 61–74; M. J. Watkins, ‘Forensics in the media: Have judges been influenced by the growing popularity of forensic crime dramas?’, unpublished MA thesis, University of West Florida (2010), pp.  57–59. Available online at: www.legalzoom. com/everyday-law/courtroom/csi-effect-juries-demand. 6 Cavender and Deutsch, ‘CSI and moral authority’, 74–76. 7 M. D. Freeman, A. M. Rossignol, M. L. Hand, ‘Forensic epidemiology: A systematic approach to probabilistic determinations in disputed matters’, Journal of Forensic and Legal Medicine 15 (2008), 281–90.

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What is forensic e ­ pidemiology?

In 2003, Goodman et  al. described early examples of practices we might call forensic epidemiology as having roots in the ‘joint or parallel investigations of both health problems possibly associated with criminal intent and crimes having particular health dimensions’ that had taken place in the US since the 1970s.8 The term itself appeared at least as long ago as 1999.9 For example, forensic epidemiology was cited as a necessary part of the response to public health threats  – first, to help distinguish a newly identified, but natural disease, West Nile virus,10 and, second, to investigate the anthrax attacks of 2001.11 Goodman et al. described two options for a definition: ‘The use of epidemiological methods as part of an ongoing investigation of a health problem for which there is suspicion or evidence regarding possible intentional acts or criminal behavior as factors contributing to the health problems’ or ’the use of epidemiologic and other public health methods in conjunction with or as an adjunct to an ongoing criminal investigation.’12 In 2008, Freeman et al. offered this definition: ‘Epidemiology is most simply defined as the scientific study or analysis of populations having similar disease or injury characteristics. The proper application of epidemiologic concepts and data to forensic issues is the practice of Forensic Epidemiology.’13 The authors do not limit use of the term to cases involving criminal investigations, using examples common to both criminal and civil legal settings.14 For them, the defining ­factor

8 R. Goodman, J. Munson, K. Dammers, Z. Lazzarini, J. Barkley, ‘Forensic Epidemiology: Law at the Intersection of Public Health and Criminal Investigations’, Journal of Law, Medicine & Ethics, 31(4) (2003), 684–700, p. 685. 9 US House Armed Services Committee, Hearing on Chemical and Biological Weapons, October 20, 1999, Washington, DC, US Government Printing Office; S. Loue, Forensic Epidemiology: A comprehensive guide for legal and epidemiology professionals (Carbondale, IL, Southern Illinois University Press, 1999). 10 E. Moscoso, ‘West Nile Outbreak not Terrorism, Experts Say  – Officials Dismiss Bioweapons Theory’, Atlanta Journal-Constitution, September 14, 2002, p. A5. 11 L. K. Altman and G. Kolata, ‘A Nation Challenged: Anthrax  – Anthrax Missteps Offer Guidance to Fight Next Bioterror Battle’, New York Times, January 6, 2002, p. A1. 12 Goodman, Munson, Dammers, Lazzarini, and Barkley, ‘Forensic Epidemiology’, 685. 13 Freeman, Rossignol, and Hand, ‘Forensic epidemiology’, 282. 14 Ibid., 284–86; M. D. Freeman, A. M. Rossignol, M. L. Hand, ‘Applied forensic epidemiology: The Baysian evaluation of forensic evidence in vehicular homicide investigation’, Journal of Forensic and Legal Medicine 16 (2009), 83–92.

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is the use of ‘epidemiologic concepts and data’ in the legal setting, particularly the use of probabilistic data and inferences. For the purpose of this chapter, we will focus the discussion of ­forensic epidemiology on situations in which public health personnel investigate health issues with suspected or established criminal consequences either independently or working with law enforcement, and the implications of public health expertise and evidence being used in criminal proceedings. Thus, it will not directly analyze the many other uses of science in the courtroom including the medical or scientific evidence presented by other scientists in medical malpractice, toxic torts, environmental litigation, or product liability cases.

Applications of forensic epidemiology

Historically, forensic epidemiologic techniques have been used to analyze clusters of deaths in a hospital setting,15 outbreaks of food-borne illness in a community,16 unsolved disappearances and homicides in a metropolitan area,17 and suspected poisonings.18 The increased awareness of possible incidents of bioterrorism after the 2001 anthrax attacks resulted in an epidemiologic investigation to evaluate the possibility that disease outbreaks might have reckless, intentional, or criminal origins.19 A review of known investigations involving forensic epidemiology was published in 2003.20 The review described 12 studies in which epidemiological and criminal investigations proceeded in parallel after some suspicious pattern of illness or injury was identified. 15 J. K. Stross, D. M. Shasby, W. R. Harlan, ‘An Epidemic of Mysterious Cardiopulmonary Arrests’, New England Journal of Medicine 295 (1976), 1107–10. 16 T. J. Torok, R. V. Tauxe, P. R. Wise, R. J. Livengood, R. Sokolow, S. Mauvais, K. A. Birkness, M. R. Skeels, J. M. Horan, L. R. Foster, ‘A Large Community Outbreak of Salmonellosis Caused by Intentional Contamination of Restaurant Salad Bars’, JAMA 278 (1997), 389–95. 17 M. J. Blaser, J. M. Jason, B. G. Weniger, W. R. Elsea, R. J. Finton, R. A. Hanson, R. A. Feldman, ‘Epidemiologic Analysis of a Cluster of Homicides of Children in Atlanta’, JAMA 251 (1984), 3255–58. 18 Centers for Disease Control and Prevention, ‘Ongoing Investigation of Anthrax  – Florida, October 2001’, Morbidity and Mortality Weekly Report 20 (2001),  877; U. Buchholz, J. Mermin, R. Rios, T. L. Casagrande, F. Galey, M. Lee, A. Quattrone, J. Farrar, N. Nagelkerke, S. B. Werner, ‘An Outbreak of Food-Borne Illness Associated with Methomyl-Contaminated Salt’, JAMA 288 (2002), 604–10. 19 D. B. Jernigan, P. L. Raghunathan, B. P. Bell, R. Brechner, E. A. Bresnitz, J. C. Butler, et  al., ‘Investigation of Bioterrorism-Related Anthrax, United States, 2001: Epidemiological Findings’, Emerging Infectious Diseases 8(10) (2002), 1019–28. 20 Goodman, Munson, Dammers, Lazzarini, and Barkley, ‘Forensic Epidemiology’, 684–700.

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The health problems involved included cardiac arrests, disseminated food-borne pathogens, homicides by asphyxiation, acute gastrointestinal illnesses possibly from toxins, and a variety of other symptoms suggestive of ­poisoning. The numbers of persons affected varied, but could be substantial, with more than 50 cardiac arrests reported from one hospital, over 750 persons who became ill with salmonella, and 32,000 persons judged candidates for prophylaxis for possible anthrax exposure.21 Closely related to forensic epidemiology is the field of microbial forensics, which uses epidemiological methods to identify microorganism(s) involved in a crime, locate a source, and, hopefully, the perpetrator.22 Microbial forensics utilizes a variety of laboratory techniques to identify specific strains of a pathogen, ‘ranging from genomics to sequencing to physiology to analysis of substances in the sample’.23 Since the anthrax attacks in 2001 in the US, public health and terrorism experts have expressed concern about other possible uses of toxins or pathogens as weapons.24 Since that time the techniques of microbial forensics have been used to analyze samples from the anthrax attacks25 and accidental and intentional poisonings with ricinus communis.26 Microbial forensics has also been proposed as part of a four-pronged anti-terrorism mission by assisting efforts towards: (1) attribution of any suspected attacks; (2) threat assessment of samples obtained from potential enemies; (3) support of nonproliferation measures such as border controls; and (4) verification of states’ adherence to the Biological Weapons Convention.27

21 Ibid. 695–­97. 22 American Academy of Microbiology, Microbial Forensics: A Scientific Assessment, (2003), p. 1, Available at: http://academy.asm.org/index.php/clinical-medical-publichealth-microbiology/545-microbial-forensics-a-scientific-assessment. 23 American Academy of Microbiology, Microbial Forensics, p. 1. 24 L. Garrett, ‘A Public Policy Expert Looks at the Bird Flu Threat’, New York Times, January 2, 2012. Available at: http://consults.blogs.nytimes.com/2012/01/02/a-public-policy-expert-looks-at-the-bird-flu-threat/; D. Grady, ‘Panel Says Flu Research is Safe to Publish’, New York Times, March 3, 2012. Available at: : www.nytimes. com/2012/03/31/health/h5n1-bird-flu-research-is-safe-to-publish-panel-says.html. 25 D. A. Rasko, P. L. Worsham, T. G. Abshire, S. T. Stanley, J. D. Bannan et al., ‘Bacillus anthracis comparative genome analysis in support of the Amerithrax investigation’, Proceedings of the National Academy of Sciences 108(12) (2011), 5027–32. 26 S. Worbs, K. Kohler, D. Pauly, M.-A. Avondet, M. Schaer, M. B. Dorner, B. G. Dorner, ‘Ricinus communis Intoxications in Human and Veterinary Medicine – A Summary of Real Cases’, Toxins 3 (2011), 1332–72. 27 J. B. Tucker and G. D. Koblentz, ‘The Four Faces of Microbial Forensics’, Biosecurity and Bioterrorism: Biodefense Strategy, Practice, and Science 7(4) (2009), 389–97.

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The varied cultures of public health and criminal justice

The ‘cultures’ of public health and criminal justice vary in numerous ways including their basic goals, the kinds of professionals employed, the tools and the language they use, and the ways they evaluate the outcomes of their work.28 These differences become important when personnel from the two come together and also when evidence obtained by public health is presented in the courtroom or other legal settings.

Goals of criminal justice and public health

The central goals of public health are to promote population health and prevent disease.29 Operationally, in the US public health: conducts surveillance and disease investigation and control activities including management of outbreaks; provides services to prevent disease and promote health (particularly targeting population-level health outcomes), and; shapes public health policy.30 In the UK, the responsibilities of public health are divided into the following activities: disease prevention and health promotion; health protection, including infectious diseases, chemical incidents, and environmental hazards, and; contribution to planning health and social service delivery and health policy. The typical US public health department includes epidemiologists, sanitarians, clinicians, and laboratory specialists (for example toxicologists, microbiologists, virologists) as well as professionals in health behaviour, communication, and policy.31 Criminal justice’s goal is to promote public safety and enforce criminal laws.32 Their operations embrace policing, investigation of crimes, 28 Z. Lazzarini, S. Scott, J. W. Buehler, ‘Criminal law and public health practice’, in R. A. Goodman, M. A. Rothstein, R. E. Hoffman, W. Lopez, G. W. Matthews (eds.), Law in Public Health Practice (New York, NY, Oxford University Press, 2003), pp. 63–92. 29 Institute of Medicine, Committee for the Study of the Future of Public Health Division of Health Care Services, The Future of Public Health (Washington, DC, National Academy Press, 1988). 30 Institute of Medicine, The Future of Public Health, pp. 43–52. 31 K. Gebbie, The Public Health Work Force: Enumeration 2000. Center for Health Policy, Columbia University School of Nursing. Supported by the Health Resources and Services Administration (HRSA) and Association of Teachers of Preventive Medicine (ATPM) (2000), Available at: bhpr.hrsa.gov/healthworkforce/reports/phwfenumeration2000.pdf; K. Gebbie, J. Merrill, H. H. Tilson, ‘The Public Health Workforce’, Health Affairs, 21:6 (2002), 57–67. 32 President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (Washington, DC, US Government Printing Office, 1967).

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prosecution of those accused of crimes, as well as crime prevention activities including community policing and education. The criminal justice system works through the police, prosecutor’s office, judiciary, and penal system, and can directly and intimately affect the lives of those it targets.33 The goals of promoting public health and public safety have significant common roots, at least within common law legal systems, in the police power  – defined as the power of the state to act for the public good. In the US, this power of state to act for the public good is most often associated with the case Jacobson v. Massachusetts34 Beyond these common roots, however, the goals of promoting public health and public safety diverge. The Institute of Medicine has described the mission of public health as ‘fulfilling society’s interest in assuring conditions in which people can be healthy’.35 Although the scope of public health powers within this mission includes the exercise of coercion over individuals, the vast majority of public health work is based on voluntary cooperation between public health professionals and the community.36 Criminal justice and law enforcement also rely on a mixture of coercion and voluntary cooperation of individuals and law enforcement. Theoretically, criminal laws can shape individual behaviour in at least three ways: incapacitation, deterrence, and by setting norms for socially acceptable behaviour with which most people voluntarily comply.37 For example, for everyone arrested for a crime, there are many who voluntarily obey the law throughout their lives. However, the use of force or the threat of force remains more central to criminal justice than to public health. The difference becomes starker, however, when we consider the goals of the penal system, a sector of criminal justice that directly 33 S. Burris, K. M. Blankenship, M. Donoghoe, S. Sherman, J. S. Vernick, P. Case, Z. Lazzarini, S. Koester, ‘Addressing the “risk environment” for injection drug users: the mysterious case of the missing cop’, Milbank Quarterly 82(1) (2004), 125–56. 34 Jacobson v. Massachusetts. 197 U.S. 11 (1905). 35 Institute of Medicine, The Future of Public Health, p. 7. 36 L. O. Gostin, S. Burris, Z. Lazzarini, ‘The Law and the Public’s Health: A Study of Infectious Disease Law in the United States’, Columbia Law Review, 99 (1999), 59–128. 37 Z. Lazzarini, S. Bray, S. Burris, ‘Evaluating the Impact of Criminal Laws on HIV Risk Behavior’, Journal of Law, Medicine & Ethics 30(2) (2002), 239–55; F. E. Zimring, G. J. Hawkins, Deterrence: The Legal Threat in Crime Control (Chicago, IL, University of Chicago Press, 1973); G. Becker, ‘Crime and punishment: an economic approach’, Journal of Political Economy 76 (1968), 169–217; K. Kuperan and J. G. Sutinen, ‘Blue water crime: deterrence, legitimacy, and compliance in fisheries’, Law & Society Review 32 (1998), 309–37; T. R. Tyler, Why People Obey the Law (New Haven, CT, Yale University Press, 1990).

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impacts those convicted of crimes. The goals of incarceration include punishment, retribution and, to a lesser degree, deterrence and rehabilitation.38 Policy-makers, criminologists, and legal academics disagree over the actual deterrent effect of many specific criminal provisions.39 Rehabilitation, once a central part of many twentiethcentury penal systems, has been de-emphasized in some jurisdictions (particularly the US) in favour of harsher sentences, less flexibility in sentencing, and the increasing prosecution of juveniles in adult courts.40 Public health, by contrast, has moved generally away from the routine use of coercive public health powers during the twentieth and early twenty-first centuries.41 The emergence of the HIV/AIDS epidemic, which followed a long decline in the prevalence of dangerous infectious diseases in the US, initiated an era that emphasized cooperation over coercion and formal recognition of the importance of individual rights within the realm of public health practice. This shift was based on concerns that resorting to coercive tactics, in the context of the HIV/ AIDS epidemic, could threaten the fragile trust of marginalized groups in public health authorities and ‘drive the epidemic underground’.42 Although many public health personnel’s attitudes have shifted back towards more traditional public health responses (including named reporting, routine testing, contact tracing, and partner notification in the communicable disease setting),43 public health in the twenty-first ­century has ­incorporated recognition of individual rights and promotion of community engagement44 into its core practices and values.45 38 United States v. LaBonte, 520 U.S. 751, 779 ­(1997); M. H. Pritikin, ‘Punishment, Prisons, and the Bible: Does “Old Testament Justice” Justify our Retributive Culture?’, Cardozo Law Review 28:2 (2006), 715–78, 718. 39 J. A. Fagan, Capital Punishment: Deterrent Effects & Capital Costs, Columbia Law School, March 2012. Available online at: www.law.columbia.edu/law_school/ communications/reports/summer06/capitalpunish. 40 B. C. Feld, ‘Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform’, Minnesota Law Review 79 (1998), 966; Pritikin, ‘Punishment, Prisons, and the Bible’, 722–27. 41 L. O. Gostin, Public Health Law: Power, Duty, Restraint, 2nd edn (Berkeley, CA, University of California Press, 2008), pp. 9–11, 444–45. 42 R. Bayer, ‘An End to HIV Exceptionalism?’, New England Journal of Medicine 324:21 (1991), 1500–04. 43 R. Bayer and A. L. Fairchild, ‘Changing the Paradigm for HIV Testing – The End of Exceptionalism’, New England Journal of Medicine 355:7 (2006), 647–49; R. Bayer and C. Edington, ‘HIV Testing, Human Rights, and Global AIDS Policy: Exceptionalism and its Discontents’, Journal of Health Politics, Policy and Law 34:3 (2009), 301–23. 44 Gostin, Public Health Law, pp. 27, 17–18. 45 Public Health Leadership Society, Principles of the Ethical Practice of Public Health (2002), available at: www.phls.org/home/section/3–26/.

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Language of criminal justice and public health

Public health and criminal justice/law enforcement personnel speak different languages. These differences stem from differences in training, standards of proof, and the way the two types of professionals frame critical questions and answers. For example, those presenting public health evidence are often epidemiologists, physicians, or bench scientists. They tend to express themselves in terms of statistics, probabilities, and empirical values that need to be interpreted. For them, empirical evidence exists independently of the guilt or innocence of the parties involved and must be objectively collected and interpreted for the jury. Scientists generally, and epidemiologists in particular, are reluctant to make conclusive statements such as ‘x caused y’. They are much more likely to frame a conclusion as ‘there is a 95 per cent probability that x is associated with y’, and may or may not conclude that the association can be considered causative. This raises several possible sources of misunderstanding for lay jurors. First, the use of probabilities – many people do not understand probabilities, what they mean or how they can be used to predict or explain events. Second, the difference between ‘association’ and ‘causation’ – although epidemiologists are well aware of what rules would suggest that an association is causal, most lay people are unfamiliar with the distinction between association and causation or the rules that would govern an inference of causation. Juries may be instructed on factors to consider to establish causation, but they do not use the same rules as epidemiologists. Finally, evidence may be presented with description of statistical tests, ‘p values’ or other numerical information. This may only serve to increase confusion among jurors who find them particularly difficult to understand. To the lay juror, such responses can sound frustratingly inconclusive if not ambiguous or evasive. Law enforcement and criminal justice personnel are more likely to use terms such as ‘burden of proof’, ‘probable cause’, and ‘beyond a reasonable doubt’ to describe who has to come forward with evidence and the relative strength of the evidence for the prosecution or defence case. Unfortunately, misunderstandings of probabilistic language are very common in courtrooms both in the US and abroad. Freeman et al. discuss the types of problems that can result from witnesses using ­probability in civil and criminal cases, sometimes leading to alarming miscarriages of justice.46 Courtrooms, where forensic evidence is used, are largely legal domains and the judge, jury, defence attorneys, and prosecutors are 46 Freeman, Rossignol, Hand, ‘Forensic epidemiology’, 281–­82.

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not necessarily scientifically literate. Both criminal justice and lay persons are more comfortable with language that draws firm conclusions such as ‘this DNA matches that found at the crime scene’, or ‘this bullet came from that weapon’ even when that evidence should be expressed as a probability. The fact that popular media, in the form of crime scene dramas, tends to present scientific evidence as unambiguous reinforces this lay assumption. Scientists’ use of specialized knowledge outside the actual experience or expertise of most jurors (as well as prosecutors, judges, and defence attorneys) can make it more difficult for juries or other non-scientists to assess the certainty or reliability of the evidence, leading them to either overestimate or underestimate its significance.

Legal challenges

Scientific evidence collected during a forensic epidemiological investigation must meet certain standards in order to be used in court. Even the foundational question – whether scientific evidence can be used – can be at issue. The answers to these questions (the applicable standards for presenting scientific evidence in the court room; what is required for a legal search of a business or home; requirements for admissibility and a valid chain of custody) will vary by jurisdiction. In some legal systems, the rules may be clearly codified and relatively uncontested, while in others, particularly countries with common law systems, the legality of any search and therefore the admissibility of any physical evidence seized will always be a matter that can be challenged. This chapter cannot describe rules of admissibility for all possible jurisdictions or systems. A brief description of the issues and how they are resolved in the US system will be used as examples.

Admissibility of scientific evidence

Where one of the parties wants to use evidence derived from a scientific investigation, the first question is whether that evidence is relevant to the case and, second, who may present the evidence and use expert knowledge to interpret it or draw conclusions from it. From the 1920s to the early 1990s, US federal courts applied the standard established in Frye v. United States, which required that scientific evidence had to ‘be sufficiently established to have gained general acceptance in the particular field’ in order to be admissible.47 This rule had the effect of 47 Frye v. United States, 293 F. 1013 ­(1923).

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barring much potentially relevant evidence, particularly where there were competing scientific views. However, beginning in 1975 the new Federal Rules of Evidence directly challenged that practice by articulating a more flexible position on the admissibility of scientific evidence. The Federal Rules of Evidence stated: ‘If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence … a witness qualified as an expert may testify.’48 This rule permitted admission of much more evidence, relying on the process of direct- and cross-examination and the possibility of multiple experts to help the judge or jury evaluate the weight of the evidence. In 1993, the US Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, established that the Federal Rules, not the earlier Frye standard, should be applied.49 Daubert laid out a two-step process for determining admissibility: the judge must first determine whether the proffered evidence is reliable and, second, determine whether it is relevant. If the answer to both is yes, then a given expert may testify and present scientific evidence.50 The court also provided guidance on determining reliability, suggesting consideration of factors such as: whether the theory or technique was tested or testable; whether it had been peer-reviewed; whether there was a known error rate; and whether the theory or technique was generally accepted. Of course, establishing a method to evaluate evidence does not guarantee that all judges will be equally skilled in its application. Some critics have argued that loose interpretations of Daubert have encouraged the introduction of ‘junk science’ into the courtroom.51 The Daubert reasoning applies to determining the admissibility of all types of scientific and technical evidence, from epidemiology and microbiology to engineering.52 By contrast, the following issues apply predominantly to physical evidence collected through searches of homes, businesses or potentially contaminated items or areas.

Requirements for a legal ­search

The Fourth Amendment to the US Constitution prohibits all governmental officials from conducting ‘unreasonable searches and 48 Federal Rules of Evidence, Rule 702 Testimony by Experts (Washington, DC, US Government Printing Office, 2010), p. 14. 49 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). 50 Ibid. pp. 587–94. 51 M. Angell, ‘What’s really behind the attack on silicone breast implants’, Medical Economics 73:17 (1996), 131–33, 136, 139–40. 52 Kumbo Tire Co. v. Carmichael, 526 U.S. 137 (1999).

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seizures’.53 What constitutes a reasonable or justified search depends on the setting, the purpose of the search, and who is conducting the search. In general, both public health and law enforcement authorities must have a warrant issued by a judge to conduct searches (with limited exceptions, see below).54 Both administrative and criminal search warrants require probable cause. Law enforcement personnel must demonstrate probable cause to believe evidence of a crime will be found, before they can obtain a criminal search warrant. By contrast, health or other governmental officials conducting an administrative search can establish probable cause for an administrative search warrant if the proposed search satisfies ‘reasonable legislative or administrative standards for conducting an area inspection … with respect to a particular dwelling’55 or business.56 In practice, public health officials should be able to show ‘reasonable legislative or administrative standards’ if the law or regulation makes this type of setting subject to inspection (for example restaurants, hospitals, and fire-damaged buildings). The primary purpose of the search is also critical to determining whether a search is legal. For example, public health authorities executing an administrative warrant must be primarily seeking health-related information, performing an inspection, or collecting samples pursuant to a regulatory scheme. If the primary purpose is to identify and collect evidence of a crime, then government officials, whether law enforcement or health officials, must have a criminal search warrant for the search to be legal.57 Problems related to the legality of searches conducted during a forensic epidemiological investigation are most likely to arise when a search that begins as an administrative search, such as those routinely conducted by health authorities, uncovers evidence of a crime. Courts have established that evidence of a crime may be seized legally during an administrative search, if the evidence is in plain sight of the persons conducting the search, described as the ‘plain view’ doctrine.58 That evidence can then be used to establish probable cause for a criminal search warrant. The ‘plain view’ doctrine does not, however, allow an 53 United States Constitution, Fourth Amendment (1787), available at: ­w ww.archives.gov/ exhibits/charters/constitution_transcript.html. 54 Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S. 541 (1967). 55 Camara v. Municipal Court, p. 538. 56 See v. City of Seattle, pp. 345–46. 57 Goodman, Munson, Dammers, Lazzarini, and Barkley, ‘Forensic Epidemiology’, 689–91. 58 Michigan v. Clifford, 464 U.S. 287 ­(1984).

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administrative search to become a criminal search without a new warrant being issued. Thus, investigators must adhere carefully to the procedures of the originally authorized search or risk having evidence that is seized excluded from use in any criminal proceeding pursuant to ‘the exclusionary rule’.59 Additionally, a search without a warrant may be legal under limited circumstances, including where an owner or occupant has consented to the search, when there are exigent circumstances that must be accompanied by probable cause, and insufficient time for the authorities to obtain a warrant. Finally, pervasively regulated businesses, where there is a reduced expectation of privacy, may be subject to warrantless searches.60

Preserving evidence – chain of custody requirements

As part of scientific research and publication scientists are expected to carefully document and describe the methods they use in experimental, observational, or other protocols. They describe their results in quantitative or qualitative terms and document those results by preserving questionnaires, interview tapes and transcripts, laboratory notebooks, laboratory tests results, even photographs of cell cultures, slides, or other specimens. Failure to preserve data so that others may use it to confirm results is, at a minimum, sloppy research practice.61 Some funders of scientific research require that data be maintained and shared for some statutory period after completion of the research.62 Failure to preserve data may lead to concerns about research misconduct, if falsification of data is suspected. Science, however, largely relies on the peer review and publication process to ferret out cases of falsification of data or failures of scientific exactitude. If a scientist is called to present evidence in court, his or her methods of analysis, whether statistical or laboratory based, may come under greater scrutiny. Additionally, if the scientist is involved in handling or testing physical evidence collected during an investigation, he or she must meet all the standards described below for preservation of physical or documentary evidence that apply to criminal or civil cases. 59 Weeks v. United States, 232 U.S. 283 (1914). 60 New York v. Burger, 482 U.S. 691 (1987). 61 E. G. Shore, ‘Sanctions and remediation for research misconduct: differential diagnosis, treatment, and prevention’, Academic Medicine 68:9 Suppl (1993), S44–S48. 62 National Institutes of Health, Final NIH Statement on Sharing Research Data tech. rep. (2003), Notice No: NOT-OD-03–032, available at: grants.nih.gov/grants/guide/ notice-files/NOT-OD-03–032.html.

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For physical evidence to be admissible in court, law enforcement must be able to establish how the evidence was collected, stored, or transferred from one person to another from the time it was first collected until it is presented in court. This is called the chain of custody. Establishing the chain of custody is supposed to ensure that any evidence collected was not tampered with or contaminated, that testing, if any, occurred on the original sample, and that the evidence presented in court is actually the same as what was originally collected. Different jurisdictions will have varying methods for establishing a chain of custody.63 Adhering to the local standard operating procedures will help establish the credibility of the personnel who handled the evidence and the reliability of the evidence. In the US, failure to establish the chain of custody can lead a court to bar evidence as inadmissible.

Prohibition against self-incrimination

In the US, individuals have the right not to incriminate themselves pursuant to the Fifth Amendment to the US Constitution.64 The familiar Miranda warnings represent law enforcement’s mechanism to ensure that any suspect held in custody has been informed that they have a right not to respond to questions (‘to remain silent’).65 Epidemiological investigations can create situations which violate an individual’s right against self-incrimination where the individual being questioned does not feel free to leave or able to refuse to respond. For example, if an individual is being questioned by health officials but believes that he is in custody or that he must respond, then a court may determine that his Fifth Amendment rights have been violated, even if the health official had no actual authority to hold the person or compel his speech. A commonly cited example of this is where a law enforcement officer is present, but not involved in the questioning, although that is not the only possible opportunity for this problem. Evidence obtained in such an interview may be suppressed because it was collected in violation of the Fifth Amendment.66 Public health professionals and law enforcement must not only work together to comprehensively investigate crimes or events that might be crimes, they must also be aware of and conform to jurisdiction-specific requirements for how searches and interviews are conducted, how 63 Goodman, Munson, Dammers, Lazzarini, and Barkley, ‘Forensic Epidemiology’,  692. 64 United States Constitution, Fifth Amendment. 65 Miranda v. Arizona, 384 U.S. 436 (1966). 66 Oregon v. Elstad, 470 U.S. 298 (1985).

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evidence is collected, transported, and maintained and how individuals are questioned. Law enforcement may be more familiar with working within the constraints of the criminal justice system and its procedural protections of individual’s rights. Public health personnel, while familiar with their own methods of data collection and disease investigation, need to adapt to new rules when they engage in or cooperate with criminal investigations or when their testimony or information may be used in criminal cases.

Public health and law enforcement cooperation: useful collaboration or dangerous entanglement?

In addition to forensic epidemiology and microbial forensics, criminal law and public health practice overlap in a variety of ways.67 In the US, state law imposes (usually minor) criminal penalties for violations of public health codes and public health-related statutes (for example unauthorized disclosure of public health data, sanitation rules, prohibition on alcohol sales to minors, sale of adulterated or contaminated food),68 and sometimes creates substantial criminal penalties for specific acts such as knowing exposure or transmission of HIV.69 Philosophically, criminal penalties may be justified for acts by persons who knowingly or intentionally cause health risks if fines, licence revocation, or other civil penalties would not be effective. Additionally, critical areas, such as disaster preparedness, anticipate increased cooperation between health and law enforcement officials at times of public health emergencies, whether natural or man-made.70 67 Z. Lazzarini, R. A. Goodman, K. S. Dammers, ‘Criminal law and public health practice’, in R. A. Goodman, R. E. Hoffman, W. Lopez, G. W. Matthews, M. A. Rothstein, K. L. Foster (eds.), Law in Public Health Practice, 2nd edn (New York, NY, Oxford University Press, 2006), pp. 136–67. 68 Lazzarini, Goodman, and Dammers, ‘Criminal law and public health practice’, pp. 142–44. 69 Lazzarini, Bray, and Burris, ‘Evaluating the Impact of Criminal Laws’. 70 R. M. Pestronk, B. Kamoie, D. Fidler, G. Matthews, G. C. Benjamin, R. T. Bryan, S. H. Tuch, R. Gottfried, J. E. Fielding, F. Schmitz, S. Redd, ‘Improving Laws and Legal Authorities for Public Health Emergency Legal Preparedness’, Journal of Law, Medicine, and Ethics 36:1 Suppl (2008), 47–51; A. D. Moulton, R. N. Gottfried, R. A. Goodman, A. M. Murphy, R. D. Rawson, ‘What is Public Health Legal Preparedness?’, Journal of Law, Medicine, and Ethics 31 (2003), 672–83; J. G. Hodge, Jr., A. M. Garcia, E. D. Anderson, T. Kaufman, ‘Emergency legal preparedness for hospitals and health care personnel’, Disaster Medicine and Public Health Preparedness 3:2Suppl (2009), S37–S44; M. Sirbu, ‘Green Paper on Bio-Preparedness’, Journal of Medicine and Life 3:4 (2010), 430–32; T. M. Quandalecy, M. C. Johns, R. Adraghetti, R. Hora, J.-B. Meynard, J. M. Montgomery, V. G. Roque, D. L. Blazes, ‘The Role

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Cooperation between law enforcement and public health, in the context of disaster preparedness, would include building enhanced surveillance systems to detect epidemics or terrorist threats, ensuring cooperative arrangements between public health and law enforcement to investigate and respond to threats, and easing some types of protections of individual liberties during declared public health emergencies.71 From a policy perspective, however, it is not clear that increased cooperation between public health and law enforcement provides all the benefits that policy-makers may have envisioned.72 It is also possible that unintended negative consequences flow from increased entanglement of these two spheres of government. This section addresses some of both the potential benefits and possible risks of increased cooperation.

Potential benefits of close collaboration

Without the core disciplines of public health science, particularly epidemiology and biostatistics, identification, attribution of causation, and prevention of a variety of harms offered up by the modern world would be very difficult. Disaster preparedness and response of all types often requires close cooperation (and preparation) by public health and law enforcement. While the initial response to an outbreak of communicable disease or emergence of a cluster of toxic exposures would proceed in similar fashion for both natural events and those that may involve criminal or terrorist acts, subsequent response may vary significantly depending on the intentional or natural origin of the problem. For example, distinguishing natural events from criminal acts would determine whether health officials should be trying to locate unknown persons who were exposed to a communicable disease and have unwittingly exposed others, or whether law enforcement should be looking for a terrorist cell that has released a pathogen and may be contemplating additional releases. The early and vigorous investigation of suspicious cases of disease or poisonings will be critical to shaping the government’s responses and the potential role of law enforcement. In a natural epidemic, law enforcement may be called on to help enforce border controls, social of Disease Surveillance in Achieving IHR Compliance by 2012’, Biosecurity and Bioterrorism: Biodefense Strategy, Practice, and Science 9:4 (2011), 408–12. 71 Turning Point, Model State Public Health Act – A tool for Assessing Public Health Laws, (2003), available at: www.publichealthlaw.net/ModelLaws/MSPHA.php. 72 T. G. Thompson, US Secretary of Health and Human Services, Public Health Partnerships: The Key to Fighting Bioterrorism, October 22, 2001, Annual Meeting of the American Public Health Association, Atlanta, GA, available at: http://archive. hhs.gov/news/speech/2001/011022.html.

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distancing, isolation or quarantine orders, or to protect transport and distribution of medical counter-measures such as vaccines or antibiotics.73 By contrast, if early investigation (based on epidemiologic, microbiological, or other evidence) points to a terrorist or criminal act as the source of the pathogen or toxin, law enforcement will likely play a much larger role in the response. For example, law enforcement would take the lead in conducting searches or seizures of persons or materials where there is suspected human involvement, investigating the possibility of any continuing threat, and trying to identify whether the perpetrators were connected to any known terrorist or criminal groups. All of the areas in which forensic epidemiological techniques have been used in the past have benefited from the cooperation of law enforcement and public health personnel. Using epidemiological and statistical techniques to investigate clusters of deaths, whether in acute care hospitals, nursing homes, or other institutions, public health personnel have been able to narrow the list of suspects in ways that law enforcement alone could not. As food distribution systems in most American and western European countries become increasingly complex, prompt identification of outbreaks of food-borne illness increasingly depends on a range of scientific evidence, including epidemiology, microbiology, and genetics. After an outbreak and a pathogen are identified, discovering the contaminated food product will still be challenging,74 and discerning unintentional from intentional contamination poses an additional burden. Clearly, some level of cooperation between public health and law enforcement personnel provides overall benefits to both public health and safety.

Potential risks of close collaboration

Collaboration between law enforcement and public health does not necessarily come without a price. The mixing of these professions and roles also poses potential risks. Unfortunately, criminal law can sometimes interfere directly with public health goals. For example, in the US, the predominantly criminal law-based approach to drug abuse has long interfered with public health goals of decreasing the risk of blood-borne diseases among drug users and promoting their entry into treatment.75 State laws that 73 Pestronk, Kamoie, Fidler, et al., ‘Improving Laws and Legal Authorities’, ­49. 74 W. Neuman, ‘A Search Is Under Way for Tainted Sprout Seeds’, New York Times, July 5, 2011, available at: www.nytimes.com/2011/07/06/business/06seeds.html. 75 Burris, Blankenship, Donoghoe, et al., ‘Addressing the “risk environment” for injection drug users’.

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criminalized possession or distribution of sterile syringes that were intended for use with illicit drugs resulted in drug users re-using contaminated syringes and transmitting HIV.76 Even after this route of infection was well-understood within the public health community and measures, such as syringe exchange and repeal of syringe prescription requirements, were endorsed by health agencies,77 many states and the US federal government refused to fund such interventions. Although the ban on funding syringe exchanges was lifted in 2009, it was reinstated in 2011.78 In other cases where legislatures have adopted criminal provisions with ostensible public health goals, there remains no evidence of the laws’ public health efficacy. More than half of US states, the UK, Canada, and many other countries have adopted laws criminalizing persons who knowingly expose others to HIV.79 Depending on how specific laws are written, they carry the power to impose lengthy sentences on persons with HIV who engage in a variety of activities – even very low-risk activities, such as spitting, biting, or having sex with a condom. In spite of more than two decades of experience with these laws, researchers have found no evidence that having the laws decreases HIV infections at the population level.80 Beyond these examples, however, increasing the degree of cooperation between law enforcement and public health poses potential risks. 76 L. O. Gostin and Z. Lazzarini, ‘Prevention of HIV/AIDS Among Injecting Drug Users: The Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention’, Emory Law Review, 46 (1997), 587–696; L. O. Gostin, Z. Lazzarini, T. S. Jones, K. M. Flaherty, ‘Prevention of HIV/AIDS and Other BloodBorne Disease Among Injection Drug Users: A National Survey on the Regulation of Syringes and Needles’, JAMA 277:1 (1997), 53–62. 77 Centers for Disease Control and Prevention, ‘Improper infection control practices during employee vaccination programs  – District of Columbia and Pennsylvania, 1993’, Morbidity and Mortality Weekly Report 42 (1993), 969–71; US Preventive Services Task Force, Guide to Clinical Preventive Services, 2nd edn (Baltimore, MD, Williams & Wilkins, 1996); American Medical Association, A Physician’s Guide to HIV Prevention (Chicago, IL, American Medical Association, 1996). 78 B. Egelko, ‘GOP Restores Ban on Needle-Exchange Funding’, San Francisco Chronicle, March 21, 2011, available at: www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/12/24/ BA291MG3RO.DTL; M. Cooke, ‘End the Federal Ban on Syringe Funding’, American Civil Liberties Union (ACLU), blog, March 21, 2011, available at: www. aclu-wa.org/blog/end-federal-ban-syringe-exchange-funding. 79 Lazzarini, Bray, and Burris, ‘Evaluating the Impact of Criminal Laws’, 241–44; S. Burris and E. Cameron, ‘The Case Against Criminalization of HIV Transmission’, JAMA 300:5 (2008), 578–81; E. Mykhalovskiy, ‘The problem of “significant risk”: Exploring the public health impact of criminalizing HIV non-disclosure’, Social Science & Medicine 73 (2001), 668–75. 80 S. Burris, L. Beletsky, J. Burleson, P. Case, Z. Lazzarini, ‘Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial’, Arizona State Law Journal, 39 (2007), 467–519.

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Public health work is largely founded on public health personnel’s successful relationships with individuals and communities that are based on trust and that lead to voluntary cooperation with public health aims and programmes. Such relationships can be directly threatened if individuals have reason to fear or mistrust public health personnel or the public health system. If increased cooperation between public health and law enforcement leads individuals to mistrust or fear public health personnel, it may directly interfere with successful public health work in that community. There is some evidence, for example, that increased enforcement of Canada’s HIV criminalization provision has had negative effects on the relationship between public health workers and clients.81 In one study, people living with HIV/AIDS reported being less likely to freely discuss problems they may have had with disclosure of their own infection to partners. Public health workers who counselled clients struggled with the meaning of significant risk in Canadian law, which led to confusion regarding when the law required disclosure. The study pointed to a more fundamental issue around the relationship between public health and law enforcement, and the author notes: While public health respondents repeatedly emphasized distinctions between public health and criminal law functions, they were also genuinely concerned about the potential erosion of public health practice and reasoning as their activities increasingly entered into relationship with the criminal law governance of health risks.82

Public health workers felt that when they counselled clients ‘with an eye to the law’ they were partially adopting a law enforcement perspective that interfered with their primary goals – helping individuals with HIV manage their own disease and preventing further transmission.83 This chilling effect on counselling, case management, and clinical care could have negative consequences on both people living with HIV/AIDS and the public health programmes involved. Associations between public health programmes and criminal laws can also heighten existing prejudice and stigma. A study in Michigan, a state with a strict HIV criminal exposure law, found that people living with HIV/AIDS felt vulnerable to being (wrongly) accused under that state’s HIV criminal exposure law and that, if accused, they feared prejudice from judges or juries towards anyone who was HIV-positive.84 81 Mykhalovskiy, ‘The problem of “significant risk”’, 671–73. 82 Ibid., 672. 83   Ibid., 672–­73. 84 C. L. Galletly, W. DiFranceisco, S. D. Pinkerton, ‘HIV-positive persons’ awareness and understanding of their states’ criminal HIV disclosure law’, AIDS & Behavior, 13 (2009), 1262–69.

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We do not know enough about the actual impact that a closer working relationship between public health and law enforcement officials will have on important public health activities such as outreach to marginalized communities, counselling persons at risk of blood-borne diseases, and engaging communities in ongoing educational activities. The potential for unintended negative effects cannot be ignored.

Future directions for forensic epidemiology

Certain common themes emerge from cases involving forensic epidemiology over many years. Several studies cited in the 2003 review of investigations involving forensic epidemiology noted the need for consistent and ongoing surveillance of events that might turn out to have intentional or criminal origins.85 Such surveillance would cover hospitals, nursing homes, and other residential facilities, as well as laboratory and public health departments that diagnose or receive reports of communicable diseases, poisonings or unexplained illnesses. Establishing a more effective and comprehensive system of surveillance for unusual or unexpected cases of morbidity and mortality aligns well with calls to strengthen the traditional public health model of disease surveillance86 and with increasing interest in systematic epidemic/pandemic/disaster preparedness across the public health spectrum.87 Mechanisms for rapid surveillance have evolved tremendously. In the US, some systems of active surveillance, such as the Foodborne Disease Active Surveillance Network (FoodNet),88 established by the 85 Stross, Shasby, and Harlan, ‘An Epidemic of Mysterious Cardiopulmonary Arrests’, 1107–10; J. W. Buehler, L. F. Smith, E. M. Wallace, C. W. Heath, R. Kusiak, J. L. Herndon, ‘Unexplained Deaths in a Children’s Hospital: An Epidemiological Assessment’, New England Journal of Medicine 313 (1985), 211–16; J. J. Sacks, D. F. Stroup, M. L. Will, E. L. Harris, E. Israel, ‘A Nurse-Associated Epidemic of Cardiac Arrests in an Intensive Care Unit’, JAMA 259 (1988), 689–95; J. J. Sacks, J. L. Herndon, S. H. Lieb, F. E. Sorhage, L. F. McCaig, D. G. Withum, ‘A Cluster of Unexplained Deaths in a Nursing Home in Florida’, American Journal of Public Health 78 (1988), 806–08; A. Franks, J. J. Sacks, J. D. Smith, R. K. Sikes, ‘A Cluster of Unexplained Cardiac Arrests in a Surgical Intensive Care Unit’, Critical Care Medicine 15 (1987), 1075–76; Buchholz, Mermin, Rios, et  al., ‘An Outbreak of Food-Borne Illness’, 609–­610; Goodman, Munson, Dammers, Lazzarini, and Barkley, ‘Forensic Epidemi­ology’, 694. 86 R. L. Berkelman, R. T. Bryan, M. T. Osterholm, J. W. LeDuc, J. M. Hughes, ‘Infectious Disease Surveillance: a crumbling foundation’, Science 264 (1994), 368–370. 87 B. J. Turnock, C. Atchison, ‘Governmental Public Health in the United States: the Implications of Federalism’, Health Affairs 21:6 (2002), 68–78; Turning Point, Model State Public Health Act (2003); Pestronk, Kamoie, Fidler, et al., ‘Improving Laws and Legal Authorities’, 47–51. 88 Centers for Disease Control and Prevention, ‘FoodNet – Foodborne Disease Active Surveillance Network’, available at: www.cdc.gov/foodnet/.

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Centers for Disease Control and Prevention in 1996, conducts active population-based surveillance of all cases of selected food-borne illnesses confirmed by laboratories in ten US states.89 FoodNet’s ability to accurately identify outbreaks surpasses traditional methods of estimation or reporting.90 Additionally, nearly universal access to the Internet has made truly global systems of real-time disease surveillance possible. In fact, the earliest reports of the SARS epidemic were reported via an independent, free, expert-moderated surveillance network known as ProMED-mail.91 Some researchers have also used commercial search engines (e.g., Google) to detect and track disease outbreaks more quickly than traditional governmental or international health organizations.92 Finally, the new International Health Regulations (2005)93 specifically permit reporting of disease outbreaks both through traditional ­governmental systems as well as data collected through new mechanisms.94 These provisions represent an advance on earlier international systems, since they allow both more rapid reporting via a variety of new media and also decrease the potential for national governments to intentionally slow or suppress reports of outbreaks.

Conclusion

Epidemiology, the core discipline of public health, has also become a well-established tool for investigating and responding to a wide array of health threats in the twenty-first century. New technologies and an increasingly connected world have made real-time disease surveillance a potential reality. The public has even come to expect science and scientific experts to play key roles in both fighting crime and punishing criminals. Forensic epidemiology provides an example of cooperation across governmental sectors that has generally been utilized to improve both public health and public safety. Disaster preparedness requires such cooperation, and improved coordination among government 89 M. Osterholm, ‘Foodborne Disease in 2011 – The Rest of the Story’, New England Journal of Medicine 364 (2011), 889–91. 90 Osterholm, ‘Foodborne Disease in 2011’, 889–90. 91 L. C. Madoff, ‘ProMED-mail: An Early Warning System for Emerging Diseases’, Clinical Infectious Diseases 39 (July 15, 2004), 227–32. 92 X. Zhou, J. Ye, Y. Feng, ‘Tuberculosis Surveillance by Analyzing Google Trends’, IEEE Transactions on Biomedical Engineering 58:8 (2011), 2247–54. 93 World Health Organization, International Health Regulations, (2005), available at: www.who.int/ihr/en/. 94 M. G. Baker and D. P. Fidler, ‘Global Public Health Surveillance Under New International Health Regulations’, Emerging Infectious Diseases 12:7 (2006), 1058–65; R. Katz and S. Rosenbaum, ‘Challenging Custom: Rethinking National Population Surveillance Policy in a Global Public Health Age’, Journal of Health Politics, Policy & Law 35:6 (2010), 1027–55.

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agencies has been articulated as part of improving disaster response capacity at both national and international levels. Increasingly, however, close identification of public health or epidemiology with law enforcement poses real risks. Criminal laws can directly interfere with public health goals. Criminal law as a tool of public health can be ineffective or produce mixed results. Finally, blurring the line between law enforcement and public health can erode the mission of public health and the relationship of trust between public health personnel and members of the communities that they serve. If this happens, public health risks both losing its soul and clouding its mission. Public health personnel, including epidemiologists, who cooperate with or participate in criminal investigations, must be aware of the differing missions and goals of the two disciplines, as well as the risks inherent in combining public health and law enforcement activities.

11

From the criminal to the consensual: the shifting mechanisms of environmental regulation Robert G. Lee and Mark Stallworthy



Introduction

The historic links between public health and environmental regulation are well illustrated by the notorious example of John Snow and the Broad Street pump. Snow’s identification of the water supply as the source of a cholera outbreak and his insistence that St James’ Vestry remove the handle of the Soho parish pump likely saved many lives.1 Snow chose to give evidence to the Parliamentary Committee considering the Nuisances Removal and Diseases Prevention Amendments Bill amending earlier legislation from 1846.2 This piece of legislation sought to eliminate sources of miasma, on the basis that these poisonous vapours were the major cause of ill health in Victorian society. Snow’s efforts to persuade parliamentarians of the veracity of his epidemiology in mapping cholera in Soho to the water pump were in vain. Although the emergence of the germ theory of disease would ultimately prove Snow correct, the political elite3 and medical establishment4 alike were less than quick to acknowledge this. Indeed, just as environmental law can prove strangely resistant to the insights of medicine in seeking to protect human health, so it can also be slow to respond to the 1 For some background see: D. E. Lilienfeld, ‘John Snow: the first hired gun?’, (2000) 152 American Journal of Epidemiology 4–12, and also the website of source material of the Department of Epidemiology at UCLA, available at: www.ph.ucla.edu/epi/snow. html. Also, see G. D. Smith, ‘Behind the Broad Street pump: aetiology, epidemiology and prevention of cholera in mid-19th century Britain’, (2002) 31 International Journal of Epidemiology 920–32. 2 Removal of Nuisances and Prevention of Epidemic Diseases Act 1846. 3 See N. Morag-Levine, ‘Is precautionary regulation a civil law instrument? Lessons from the history of the Alkali Act’, (2011) 23 Journal of Environmental Law 1–43, charting the tenacious resistance of local political and manufacturing interests that for much of the 19th century ensured weakened enforceability for much ambient air quality legislation. 4 The Lancet, 23 June 1855, decried Snow’s evidence to the Parliamentary Committee in the following terms: ‘It is the misfortune of Medicine, in its conflict with the prejudices of society, that it is continually exposed to discomfiture, through the perverse, crotchety, or treasonable behaviour of certain of its own disciples.’

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dictates of modern science. In the twentieth century, notwithstanding the work of Pasteur, Lister and Fleming, the Public Health Act 1936 failed to significantly change the categories of nuisances ‘prejudicial to health’ that could be subject to an abatement order. Indeed the current provision, under the Environmental Protection Act 1990, still retains a lengthy list of sources of nuisance that are based on the miasma hypothesis including: premises, smoke, fumes and gases, dust, steam, smell, or other effluvia, and accumulations or deposits in conditions such as to be prejudicial to health.5 Meanwhile, and more significant in terms of the practice of enforcement, the public health underpinnings of that same regulatory mechanism remain an autonomous element of the offence of statutory nuisance today. These are rooted in risks of disease, infection or illness: from a range of hazards that include run-down premises6 and polluted public spaces.7 Similarly, the common law crime of public nuisance affords a residual, if seldom used, category for regulatory action in furtherance of health objectives.8 In this chapter we argue that a re-evaluation of regulation and enforcement within environmental law is needed. It is perhaps partially underway, in two particular respects. First, there has been long-­standing disquiet at confused regulatory objectives that attend upon reliance on the criminal law,9 and in particular on principles of strict liability,10 for purposes of ultimate regulatory enforcement. What amounted to partial reform proposals,11 aimed at introducing more flexible sanctioning mechanisms (such as formal compliance undertakings and regulatorimposed civil penalties), were enacted in 2008.12 Subsequently, the Law Commission, referring to ‘unfinished business’ from the Macrory Report,13 has been considering reforms that would lead to a further pruning of opportunities for recourse to the criminal law in all save the more serious regulatory contexts, and a general replacement of strict 5 Section ­79. 6 See Salford CC v. McNally [1976] AC 379; cf. Oakley v. Birmingham CC [2001] 1 AC 617. 7 See R v. Carrick DC and others, ex parte Shelley [1996] Env LR 273 (often cited as the ‘Surfers Against Sewage’ case). 8 See Sykes v. Holmes [1985] Crim LR 791. 9 See C. Hilson, Regulating Pollution – a UK and EC Perspective (Oxford, Hart, 2000), ch. 7. 10 See G. Richardson, ‘Strict liability for regulatory crime  – the empirical research’, (1987) Criminal Law Review 295–306. 11 R. Macrory, Report on Regulatory Justice: Making Standards Effective (London, Better Regulation Executive, 2006). 12 Regulatory Enforcement and Sanctions Act 2008. 13 Law Commission, Criminal Liability in Regulatory Contexts, Consultation Paper 195 (2011), para. 1.3.

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and absolute forms of liability with ‘proportionate fault elements’,14 as can be found under due diligence defences.15 A second example, as yet more tentative, suggests a future regulatory framework that takes account of the value of ecosystems to the wider economy and society.16 There is a growing realisation that ecosystems services,17 as recognised in the proposed Natural Environment Framework for Wales,18 may give rise to considerable benefits in terms of well-being, as with the links between green spaces and public health.19 Growing depletion of environmental resources has generated concerns about food, water and energy security, even in the developed world. Biodiversity loss forecloses the availability of ecosystems services to meet social needs while reducing the potential of natural and genetic therapies as yet undiscovered. Environmental change through deforestation, land degradation and poor water management may have major effects on human vulnerability to catastrophic events and the spread of infectious diseases.20 Climate change brings not only increased mortality rates through exposure to extreme temperature, but newly acquired vector-borne disease, greater exposure to low level ozone, and the potential for skin cancers, cataracts and allergic conditions.21 Seeking to value ecosystems services poses problems both normatively, in respect of the seeming incommensurables of those assets that flow from human endeavour and those resources that nature provides, 22 and, pragmatically, in the way of assimilating scientific data concerning 14 It has been suggested that the courts might have a general power to apply such ­negative fault requirement, allowing for a defence but placing a burden of proof on the defendant: para. 4.46. 15 Use of these is not widespread, although examples in our context include Food Safety Act 1990, ss. 7, 8, 15; Environmental Protection Act 1990, s. 118(2). 16 Department of Food, Environment and Rural Affairs (Defra), UK National Ecosystem Assessment: Understanding Nature’s Value to Society  – Synthesis of Key Findings (June 2011). Such services include: food, raw materials, ambient air and water supplies, recreation and access to nature, the breaking down of waste and maintenance of climate. 17 See also Defra report, Payment for Ecosystem Services (October 2011): www.defra.gov. uk/publications/files/ecosystem-payment-services-pb13658a.pdf. 18 Welsh Government, Natural Resources Wales, Consultation Paper WG14766 (February 2012). 19 R. Mitchell, T. Astell-Burt and E. A. Richardson, ‘A comparison of green space indicators for epidemiological research’, (2011) 65 Journal of Epidemiology and Community Health 853–58. 20 See, e.g., Commission on Social Determinants of Health, Closing the Gap in a Generation: Health Equity through action on the Social Determinants of Health, Final Report (Geneva, World Health Organization, 2008). 21 See A. Costello, et al., ‘Managing the health effects of climate change’, (2009) 373 The Lancet 1693–733. 22 Cf. Defra, White Paper, The Natural Choice: Securing the Value of Nature, Cm 8082 (June 2011).

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natural capital into both decision-making and market pricing structures.23 One potential consequence of ecosystem services valuation may however prove to be a re-drawing of connections between objectives for environmental protection and human health.24 Such connections, especially prominent as public health objectives, underpinned early regulatory responses to environmental pollution but became more detached from the 1970s as environmental regulation expanded to cover a sprawling field of controls over human activities.25 We argue, however, for the need for a more radical shift, away from the traditional focus on the localised impacts of industrial production towards the more diffuse and globalised consequences of unsustainable patterns of modern consumption. In effect, the challenge for modern environmental regulation in a developed society, such as that of the UK, is to move beyond that traditional focus (and a concern with point source threats) and to address the more insidious challenges that lie to a large degree beyond decision-makers’ current strategies.26 At the same time, social and health inequalities often give rise to greater vulnerabilities in exposure to environmental risk. Social ecologists have accordingly argued that the resolution of such inequalities must be a precondition to ecological improvement.27 A further challenge, especially now in the face of such threats as the consequences of climate change, is to address those social and health inequalities that pose the considerable danger of undermining ‘the sense of shared sacrifice necessary to future global cooperation on the environment’.28 The courts have, by long tradition, found it impossible to rise to the challenge of eliminating or equalising the shared consequences of environmental risk,29 as in the narrowing of nuisance to a tort concerned with ­competing land use 23 See House of Commons, Environment, Food and Rural Affairs Committee, Natural Environment White Paper, 4th Report of 2012–13, HC 492 (17 July 2012), para. 3. 24 See, e.g., J. Salzman, ‘Valuing ecosystem services’, (1997) 24 Ecology Law Quarterly 887–904, at 902. 25 D. Robinson charts this development in ‘Regulatory evolution in pollution control’, in T. Jewell and J. Steele (eds.), Law in Environmental Decision-Making  – National, European, and International Perspectives (Oxford, Clarendon Press, 1998), pp. 29–72. 26 Similarly, from a risk perspective, V. Heyvaert, ‘Governing climate change: towards a new paradigm for risk regulation’, (2011) 74 Modern Law Review 817–44, distinguishes the focus of traditional regulation on ‘impact uncertainties’ (an example in the modern era would be chemicals regulation under REACH) from new challenges which she labels ‘control uncertainties’, in the sense that they lie beyond current mechanisms. 27 M. Bookchin, The Ecology of Freedom (Palo Alto, Cheshire Books, 1982). 28 M. J. Sandel, What Money Can’t Buy: The Moral Limits of Markets (London, Allen Lane, 2012), p. 73. 29 For a historical insight into the inflexibilities of a largely reactive common law regime as a rationale for initial steps towards regulation under statute, see Morag-Levine, ‘Is precautionary regulation a civil law instrument?’, 9–13.

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claims,30 with limited direct regard to wider matters of public benefit.31 This has more recently been reflected in judicial refusal to join debates about the resources deployed to address such risk 32 or the need for precaution in the face of the contingencies that it presents.33 As judges have vacated the debate on such issues, on the basis that these are political, policy questions involving resource allocation best determined by the legislature,34 it falls to environmental regulation to address those diffuse and amorphous threats that are increasingly recognised as arising from the ecologically destructive consequences of our continuing levels of consumption. It is to these questions of the nature and ambition of environmental regulation that we now turn.

Matching regulatory perspectives to technical and economic change

Regulatory debates since the final quarter of the twentieth century have been dominated by arguments around the contrasting merits of regulation by traditional command-and-control and more recent economic, market-based mechanisms.35 Yet, in spite of considerable development in recent years of alternative approaches such as emissions trading, economic incentives and green taxation, environmental regulation retains a widespread reliance on principles of command-and-control. Indeed, traditional forms of regulation have proved remarkably resilient in accommodating new approaches within recognised frameworks.36 So, for example, there are European requirements to reduce the volume of packaging waste with sanctions for companies that fail to meet the targets set. However, targets can be met by purchasing producer 30 See, e.g., Hunter v. Canary Wharf [1997] AC 655 and Dobson v. Thames Water Utilities [2011] EWHC 3253, stressing availability of remedies for nuisance only to persons holding an interest in land affected by the nuisance. 31 See, e.g., Shelfer v. City of London Electric Lighting Co [1895] 1 Ch 287; Dennis v. Ministry of Defence [2003] EWHC 793. 32 Marcic v. Thames Water Utilities Ltd [2002] 2 AC 42; R. G. Lee, ‘Resources, Rights and Environmental Regulation’, (2005) 32 Journal of Law and Society 111–30. 33 In the administrative law context, Downs v. Secretary of State for Environment, Food and Rural Affairs [2009] EWCA 664 offers a powerful example of the use of the precautionary principle as shield rather than sword: see further L. M. Warren, ‘Healthy crops or healthy people? Balancing the needs for pest control against the effect of pesticides on bystanders’, (2009) 21 Journal of Environmental Law 483–99. 34 See, for instance, Lord Goff’s speech in Cambridge Water Company v. Eastern Counties Leather plc [1994] 2 AC 264, 305. 35 R. N. Stavins and B. W. Whitehead, ‘Dealing with pollution: market-based incentives for environmental protection’, (1992) 34 Environment 7–42; cf. M. Sagoff and D. Miller, Market, State and Community (Oxford University Press, 1992). 36 R. Macrory, ‘Regulating in a risky environment’, (2001) Current Legal Problems 619–48.

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responsibility notes (PRNs) from companies that have available PRNs, having surpassed regulatory targets.37 The argument that follows in this chapter has two primary points of reference. First, pervasive English law approaches to environmental regulation retain a continuing relevance. These have long been underpinned by the rules, principles and sanctioning processes of criminal law to assure compliance. The approaches are also supported by the deployment of supplementary mechanisms aimed at maximising effectiveness. Second, there is a need to re-visit what remains a predominantly regulatory focus on controlling supply side activities. This is prompted by recognition of the changing dynamics of a new generation of environmental threats, potentially undermining the sustainability of established socio-economic systems. The commonly cited reason for regulatory intervention is an event of market failure. In the case of environmental regulation, traditionally this event has been the failure of the market to internalise the external costs, often human health costs, of environmental pollution generated in the process of industrial production. Increasingly, however, it is clear that chronic environmental externalities arising from patterns of consumption may be as great or greater than those of industrial production. The reason underlying this premise is that many human activities that we now know to be contributing to the more threatening forms of environmental degradation are not easily susceptible to environmental regulation. They are therefore subject (at most) to forms of indirect control in the manner, for example, of a congestion charge to limit the health and other effects of road traffic. For all that our regulatory approaches have proved in the past to be open to innovation and change, we argue here that a re-direction may now be required. As Angelo eloquently suggests: We must not make a scarecrow of the ­law, Setting it up to fear the birds of prey, And let it keep one shape, till custom make it Their perch and not their terror.38

Consideration of radical changes in approach, and how these might be justified and rendered workable, will pose considerable challenges for those with responsibilities for environmental governance. 37 Thus introducing a form of trading scheme: see Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste, OJ L365, 31 December 1994, amended by Directive 2004/12/EC of 11 February 2004, OJ L47, 18 February 2004; also, Producer Responsibility Obligations (Packaging Waste) Regulations 2007 (SI 2007 No. 871, as amended); Case C-444/00, R (Mayer Parry Recycling Ltd) v. Environment Agency, Secretary of State for the Environment, Transport and the Regions[2003] ECR I-6163. 38 Shakespeare’s Measure for Measure, Act II, scene I, lines 1–­4.

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An instructive starting point for a review of regulatory trends is Ronald Coase’s seminal essay that took issue with those ideas that had dominated welfare economics either side of World War II.39 The paper takes us to the core of the problem of industrial pollution control; in his example of a factory, the smoke from which has harmful effects on those occupying neighbouring properties. The burden of Coase’s argument is that property rights are crucial to market exchange, the operation of which will produce, in principle, the most efficient means of reconciling land-use conflicts that arise between the respective owners. At the heart of the argument is the proposition that, in the absence of transaction costs, it does not matter upon which party the liability rule is placed, because these parties will engage in a negotiated exchange, resulting in the most desired end-use for the land. At first sight the arbitrary nature of such a proposition seems to offend against perspectives based upon simple categorisations of polluter and victim in a context of social or environmental justice.40 And yet, the proviso concerning the absence of transaction costs is an integral part of the formulation. Once a real-life consideration of such costs is put into the equation, Coase accepts that it is likely to matter how the liability rule is fixed in order to ensure that remedial action ensues. Nonetheless, he is adamant that the clear allocation of property rights lies at the heart of any solution to what is perceived as a bilateral problem. However, given both the nature and complexities of environmental threats, legal responses for purposes of environmental protection have never been perceived as being solely, or even predominantly, framed by economics.41 Any intervention through environmental regulation is aimed at achieving the recognition and subsequent re-ordering of rights. On this ground, Coase’s work continues to offer a compelling introduction, and environmental permitting-systems can be seen as premised upon the creation and allocation of a new species of property rights, in the form of the creation of ‘enforceable rights and duties in otherwise unowned resources.’42 Pursuing the Coasean example, the issue of such a permit

39 R. H. Coase, ‘The problem of social cost’, (1960) 3 Journal of Law and Economics 1–44. 40 For an analysis focused upon identifying the connections between sustaining ecological health and the goals of social justice, see D. Schlosberg, Defining Environmental Justice: Theories, Movements, and Nature (Oxford University Press, 2007), ch. 2. 41 See, e.g., E. T. Freyfogle, ‘The ethical strands of environmental law’, (1994) 4 University of Illinois Law Review 819–46. 42 See D. Cole, Pollution and Property: Comparing Ownership Institutions for Environmental Protection (Cambridge University Press, 2002), p. 14.

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amounts to the allocation of a property right.43 The permit serves to set terms for the authorisation of emissions from the factory, with regulators determining levels of acceptable pollution in accordance with the conditions of issue. This constitutes the control element of ‘commandand-control’ as the installation is subject to constraints in terms of a number of matters designed to protect the health and well-being of the neighbours. These may include: the quality and concentration of emissions; levels of dispersal; and equipment and process requirements. The facility can be inspected to see whether it is operating in accordance with permit conditions and in the event of breach the regulator is empowered either to seek, or itself to impose, sanctions (further commands) to the point of closure of the facility through withdrawal of the permit. It may seem unsurprising that the capacity to cause harm to human health is regulated by a process that is ultimately criminal in nature. Yet, there has been a growing sophistication in forms of regulatory response and a shift towards non-criminal sanctioning, including compulsory cleanup44 and undertakings by polluting parties to upgrade the facility or remedy the consequences of its faulty operation.45 In consequence of such mechanisms, a re-configuration of the relationship between factory owner and its neighbours is brought about. A major problem with the sort of command-and-control model outlined above is that it is hugely resource intensive. A striking example of this is the contaminated land regime under Part 2A of the Environmental Protection Act 1990.46 The process involved in the regime, which was not introduced until 2000, mimicked the very statutory nuisance abatement structure dating back to the Nuisances Removal Act 1846. Where land (usually by reason of its earlier industrial usage) poses the risk, inter alia, of significant harm to human health, or the significant ­possibility of such harm, then it can be designated as contaminated, and the local authority, as primary regulator, can serve a notice requiring land remediation. Yet only 781 determinations of contaminated land out of an estimated potential 33,500 sites were made in the first seven years of the regime. Even fewer notices were then served, only four in the first five years of the operation of the regime.47 This does 43 Celtic Extraction Ltd & Anor v. Environmental Agency [1999] EWCA Civ 1835. 44 See Environmental Protection Act 1990, s. 27 and the surrender of licence conditions in Environmental Permitting (England and Wales) Regulations 2010, Schedule 5, Part 1. 45 By virtue of Regulatory Enforcement and Sanctions Act 2008, s. 50. 46 Introduced by the Environment Act 1995. 47 S. Vaughan, ‘The contaminated land regime: still suitable for use?’, (2010) Journal of Planning and Environment Law 142–56.

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not tell the full story as land was subject to clean up on a voluntary basis in the shadow of the regime, often following consideration of the risks on land or business transfer, or supervised by the planning system on redevelopment.48 However, the history of the regime would seem to indicate the limitations of such an ambitious programme as public sector resources continue to shrink. Similarly, in the common process of licensing potentially harmful activity, the issuing of permits, drafting of conditions, inspections and range of methods of enforcement demand human and technical resources, not only of the regulator but also of the regulated community.49 Modern regulators are also subject to an extensive set of new roles, especially in the delivery of what have come to be termed compliancebased approaches, with a shared emphasis on public service provision as well as a policing function. A similar tendency can be seen in the deregulatory effects of so-called risk-based regulation, referred to below. In sum, concerns at the inefficiencies of command-and-control, which gained increasing traction through the 1980s, elided with an emerging political zeitgeist of economic liberalisation (seen most dramatically in ‘big bang’ and the freeing up of financial services from historic regulatory constraints).50 The resulting deregulatory agenda, in tune with neo-liberal policy approaches that remain prevalent today, continues to question the costs, inflexibilities and disincentives that are seen as the hallmarks of the state legalism as embodied within command-andcontrol regulation.51 That is not to say that command-and-control is an unyielding ­monolith with no capacity for reflexivity and change. To their influential 1992 work, Responsive Regulation, Ayres and Braithwaite added as a subtitle the words ‘transcending the deregulation debate’.52 For UK environmental lawyers, the book appeared at an interesting historical point: some two years after the Environmental Protection Act 1990. This had for the first time attempted to create a more broadly encompassed scheme of environmental regulation within the UK, whilst also 48 R. Lee and S. Vaughan, ‘The contaminated land regime in England and Wales and the corporatisation of environmental lawyers’, (2010) 17 International Journal of the Legal Profession 35–58. 49 B. A. Ackerman and R. B. Stewart, ‘Reforming environmental law’, (1985) 37 Stanford Law Review 1333–65. 50 H. Ingham and S. Thompson, ‘Structural deregulation and market entry: the case of financial services’, (1993) Fiscal Studies 1–14. 51 T. L. Anderson and D. R. Leal, ‘Free market versus political environmentalism’, (1992) 15 Harvard Journal of Law & Public Policy 297–310. 52 I. Ayres and J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York, Oxford University Press, 1992).

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embodying an early movement towards a deregulatory agenda through the introduction of integrated industrial pollution controls (subsequently followed across the EU). Their work also pre-dated by two years the more formal statutory commitment to deregulation contained in the Deregulation and Contracting Out Act 1994. The most significant contribution of Ayres and Braithwaite is encapsulated in the regulatory pyramid through which they sought to demonstrate that commandand-control regulation does not necessarily conform to type, that is, as accorded by its reputation. There are many more activities encompassed within the wide base of the pyramid – broadly, at the level of persuasion – than there are at its upper end, where ever-harsher forms of sanctioning are applied. Indeed, much of the regulatory endeavour lies in seeking to avoid action in the upper tiers of the pyramid by recourse to processes of engagement that encourage compliance under the softer approaches represented at the foot of the pyramid. If the pyramid is presented as two-dimensional, then this reflects a somewhat narrow perspective based upon relationships between regulator and regulated. In practice there are many more actors, not least those potentially harmed by the regulated activity, offering an expanding regulatory dimension, neatly encompassed within notions of regulatory pluralism and institutionalised consensus building.53 These also include such parties as shareholders, employees and third parties from across industry and wider civil society, as well as other public agencies. A further cause for caution is that the pyramid fails accurately to represent the potential range and depth of regulatory activities. For instance, responses such as licence suspension or revocation are seen as very much ‘last resort’ options, not in practice available except in extremis. In addition, not all enforcement options may be available to the regulator. For example, within the UK, civil penalties, a common feature of other jurisdictions, were made possible for the first time recently under the Regulatory and Enforcement Sanctions Act 2008, for less serious infractions. That said, the UK centre-right coalition government has placed a moratorium on key parts of that legislation, reflecting the coalition’s perception of measures under the Act as an exercise in administrative ‘red tape’, rather than as a more targeted approach to sanctions. In pursuit of reducing the burden of environmental regulation, there has also been the development of an increasing commitment to 53 N. Gunningham, ‘Environmental law, regulation and governance: shifting architectures’, (2009) 21 Journal of Environmental Law 179–212; also, R. Baldwin and J. Black, ‘Really responsive regulation’, (2008) 71 Modern Law Review 59–94.

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r­ isk-based regulation. There are, on the one hand, cogent emerging critiques concerning the effectiveness of risk-based approaches. These can be related especially to a questioning of accepted assumptions as to the objectivity of information upon which decisions are based,54 particularly in complex areas of scientific uncertainty. On the other hand, riskbased regulation can arguably be seen as deploying reduced regulatory effort to best advantage, as espoused under ecological modernisation,55 by restraining the ‘straightjacket’ of ‘over-zealous regulation’.56 It is notable that a separate aspect of this trend towards risk-based regulation has led to a more explicit reliance on technical assessments. The resulting process of more formalised regulatory decision-making has reduced both the scope for applying administrative discretion and for administrative law challenge.57 The same might be said for the UK Environment Agency’s recently much-extended enforcement and prosecution policy, which similarly tends to limit discretion by purporting to apply objective criteria for regulatory intervention.58 The adoption of such stances might be seen as according priority to those interventions that are most cost-beneficial, with regulators addressing such questions with a closer eye to an efficient marshalling of increasingly stretched public resources. It has accordingly led not only to greater integration of environmental regimes (and so called ‘one stop shops’), but also to the extension to regulated parties of a wider range of choices: for instance, as to whether to adopt standard or more bespoke, negotiated permit arrangements for regulated activities,59 or the ability to offer undertakings to remedy shortfalls in compliance.60 Taking this a potential stage further, the UK government has signalled an intention ‘to end the culture of “tick-box” regulation and instead to target inspections on high risk organisations through co-regulation and improving professional standards’.61 This suggests a preference for collaborative approaches, through such means as negotiated undertakings and referencing to gradual developments in 54 See Warren, ‘Healthy Crops or Healthy ­People’. 55 See, e.g., M. Hajer, The Politics of Environmental Discourse (Oxford University Press, 1997), pp. 24–41. 56 D. Farber, Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World (Chicago University Press, 1999), p. 203. 57 Levy v. Environment Agency [2003] Env LR 13. 58 Environment Agency, Enforcement and Sanctions Guidance (2011), available at www.environment-agency.gov.uk/static/documents/Business/Enforcement_and_ Sanctions_Guidance.pdf. 59 Environmental Permitting Regulations 2010 (SI 2010 No. ­675). 60 Regulatory Enforcement and Sanctions Act 2008, s. 50. 61 HM Government, The Coalition: Our Programme for Government (Cabinet Office, May 2010), p. 9.

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corporate social responsibility, perhaps backed by an extension in the application of ‘name and shame’ publicity measures.

Re-evaluating regulation

The ‘responsive’ regulation approach of Ayres and Braithwaite is concerned with the appropriate levels and form of intervention but it also suggests a more expansive approach for the future by questioning ‘how effectively citizens or corporations are regulating themselves before deciding whether to escalate intervention’.62 In the area of waste regulation, for instance, in light of the geophysical constraints and a strong push for the reuse, recovery and recycling of secondary material resources, under the Landfill Directive63 decision-makers must work with a greatly reduced availability of landfill sites. Thus, the traditional command-and-control, inspection-based regulation of such facilities has become less appropriate. Instead, the regulatory focus must turn towards the emergence of modern, high technology facilities, such as anaerobic digestion or waste-to-energy plants. Issues of health impacts arise in both cases. Risks of living in proximity to landfills have gone largely unquantified but there are fears of long-term, low-level exposures.64 These fears are replaced with a new set of concerns arising from hazards such as dioxins and furans from incinerators65 or spores from composting.66 The burden on regulators has changed from physical inspection of what goes into landfill to more technocratic questions, such as just how good are available technologies for waste management and what level of reliance might appropriately be placed on, say, computer-controlled quench times for the incinerator flues. Waste management processes may be assisted by product composition requirements67 and the creation of supply loops in which producers take back material that they placed on the market under producer responsibility measures.68 However, even these developments in regulatory thinking do little to press for what may be most needed: waste minimisation. 62 Ayres and Braithwaite, Responsive Regulation, p. 5. 63 Council Directive 99/31/EC of 26 April 1999 on the landfill of waste, OJ 1999 No. L182, 16 July 1999. 64 A. Wandersman and W. K. Hallman, ‘Are people acting irrationally? Understanding public concerns about environmental threats’, (1993) 48 American Psychologist 681–86. 65 Graham v. Rechem International Ltd (1994) Env LR 158. 66 Morgan and Baker v. Hilton Organics [2009] EWCA Civ 107. 67 See, e.g., Council Directive 2011/65/EU of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment, OJ L174, 1 July 2011. 68 Council Directive 2000/53/EC of 18 December 2000 on end-of-life vehicles, OJ L269, 21 October 2000; Council Directive 2002/96/EC of 27 January 2003, on waste

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Similar changes affect the regulation of industrial pollution. For instance, we have reduced the exposure of workers to environmental and related health hazards. Indeed, much modern industrial practice depends increasingly upon digitised processes, and correspondingly less on direct manual labour applications. Thus, highly carcinogenic polychlorinated biphenyls (PCBs), employed in past production processes, have been removed in the face of digital switch gear. Moreover, the UK has moved from an industrial economy to a service economy, with manufacturing now accounting for just 11 per cent of its national GDP (compared, for example, with 13 per cent in France). Even where we continue to deploy heavy industrial processes, in the face of public expenditure reductions, regulators have become more reliant on the adoption of ‘smart’ or co-regulation approaches.69 Indeed, towards the base of the regulatory pyramid, corporate social responsibility has a part to play in ensuring a broader institutional buy-in in support of regulatory choices. The 2010 ‘Deepwater Horizon’ crisis in the US suggests that the potential effects of injury to reputation, whether to a company or its individual managers, and whether it is market-driven or politically negotiated, may assume a potency beyond those legal arguments that relate to formal (compensatory or regulatory) proceedings.70 It seems then that our regulatory energies remain directed to a large degree at the risks posed by industrial producers and associated with earlier forms of industrialisation.71 In the face of a pressing need to deliver greater levels of sustainability, control of the activities of the industrial actors, which are traditionally the subject of regulatory attention, can continue to ensure progress only at the margins.72 Such older-generation approaches to regulation are not well-equipped to address, by virtue of their collateral effects, those environmental and health threats that are extensively diffused throughout the population. Environmental regulation may be criticised as inadequately engaging with the widespread spatial and/or temporal (especially intergenerational) effects of environmental harms, as well as the problems of loss electrical and electronic equipment, OJ L37, 13 February 2003; Directive 2006/66/ EC of 6 September 2006 on batteries and accumulators and waste batteries and accumulators, OJ L266 of 26 September 2006. 69 N. Gunningham, P. Grabosky and D. Sinclair, Smart Regulation: Designing Environmental Policy (Oxford, Clarendon Press, 1998). 70 Similarly, Vogel has pointed to a lack of a federal legislative response despite proposals for an extension in regulatory offshore drilling controls: D. Vogel, The Politics of Precaution – Regulatory Health, Safety, and Environmental Risks in Europe and the United States (Princeton, Princeton University Press, 2012), pp. 140–41, 235. 71 See Heyvaert, ‘Governing climate ­change’. 72 See J. B. Ruhl, ‘Sustainable development: a five-dimensional algorithm for environmental law’, (1999) 18 Stanford Environmental Law Journal 31–64, at 38–41.

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of natural capital (resource depletion), including in areas such as water shortage or biodiversity loss. Fundamental economic questions retain their salience, including how resources can be allocated with the greatest efficiency, particularly to produce optimum social welfare or public health effects. But reliance on the alchemy of market exchange seems to offer a fool’s gold in many environmental protection contexts, where there are typically high transaction costs.73 Such transaction costs are perhaps at their highest in the face of difficulties inherent in accounting for access to ‘common goods’. In adopting largely short-term perspectives, markets not only take inadequate account of inherent unsustainabilities in the exploitation of vital resources (and ecosystems services), they are also paradigmatically more sensitive to price signals than to ecological limits (as, for instance, in pricing fossil fuels in ways that discourage investment in renewable technologies). Whilst there will be disagreement in selection of responses, the path toward degradation charted in the ‘tragedy of the commons’ reflects the sub-optimal outcomes that result from free-riding and the difficulties posed by the collective action problem.74 Further, as in the case of climate change, the pursuit of suitable responses (to internalise harms) is especially problematic in the face of scientific uncertainties attaching to the complex operations of ecological systems and the implications of both singular and cumulative disturbances. It is argued that the time has come to consider the possibilities for addressing not just the identified externalities of industrial production but now also those flowing from unsustainable levels of consumption. Drawing again on the Coasean idea of reciprocal threats, there is a need for a harmonious relationship between production and consumption, and the latter ought not to escape the type of direct regulatory scrutiny directed at the former. The UK Sustainable Development Commission has suggested a re-assessment of the ruling, narrow, macro-economic vision that has relied on consumption growth, at the cost of investment in and managing long-term infrastructure assets, in pursuit of sustainable technologies and ecosystem maintenance.75 Any attendant reassessment of environmental regulation should not be constrained by simple assumptions as to what we mean by internalising externalities. Rather than focusing narrowly on the externalities attaching to industrial production, it is necessary to take fuller account of the 73 Sandel, What Money Can’t Buy, pp. 74ff. 74 G. Hardin, ‘The tragedy of the commons’, (1968) 162 Science 1243–48. 75 See T. Jackson, Prosperity Without Growth: the Transition to a Sustainable Economy (London, Sustainable Development Commission, 2009), ch. 9.

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significant social costs of every day activity such as motor vehicle use, over-consumption and waste of food, or a failure to engage with energy minimalisation.76 Indeed, with externalities so prevalent in many modern patterns of consumption, this may prompt consideration as to how much meaning we can continue to attach to the concept of environmental externality, and whether our understandings of market failure and the nature of regulation as a corrective force might more effectively be re-focused elsewhere. A need to extend perspectives of regulatory activity may be driven by greater understandings as to where the major threats to sustainability lie. This should seek, for instance, to encompass effects that are ‘less localised, less visible, and less limited to specific media or specific population groups’, whilst also addressing ‘environmental problems the effects of which are unknown’.77 In order to achieve this, a more extensive range of activities and individuals may need to be brought within appropriate regulatory frameworks. Whilst it is tempting to direct our scrutiny at the risks from climate change, Latin describes a more expansive notion of ‘environmental consumption’, which includes ‘satisfactions derived from aesthetic and recreational experiences, from avoidance of pollution and its effects, from preservation of endangered species or undeveloped land, and from many other aspirations linked to environmental circumstances’.78

Regulating for sustainable ­consumption

With an effective reliance on decentralised decision-making having proved insufficiently effective to constrain unsustainable levels of environmental consumption, questions as to how to regulate our everyday activities raise important governance quandaries. Thaler and Sunstein have recently explored some of these issues in presenting their idea of a nudge theory.79 ‘Nudge’ has emerged from behavioural economics and social marketing, and attempts to influence everyday choices, through the development of ‘choice architecture’, in order to incentivise the ‘right’ decisions. The authors describe the endeavour as an exercise in ‘libertarian paternalism’, a notion that, whilst not oxymoronic, 76 J. P. Manno, ‘Less energy, better health’, in L. Westra, L. Soskolne and D. W. Spady (eds.) Human Health and Ecological Integrity – Ethics, Law and Human Rights (Abingdon, Earthscan, 2012), pp. 83–92. 77 Jewell and Steele, Law in Environmental Decision-Making, pp. 20–21. 78 H. A. Latin, ‘Environmental deregulation and consumer decision-making under uncertainty’, (1982) 6 Harvard Environmental Law Review 187–39, at 189. 79 R. H. Thaler and C. R. Sunstein, Nudge: Improving Decisions About Health, Wealth and Happiness (New Haven, CT, Yale University Press, 2008). C. R. Sunstein and

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does seem to echo the idea of the two-headed horse pulling in opposing directions. In turn, a two-fold problem that lies in the way of nudge theory is that first, governments today do not occupy most of the spaces in which we exercise our market choices. It may well be an interesting idea to change the choice architecture of supermarkets to make healthy food options more visible, but if the supermarket wishes to reserve such spaces for less healthy but more profitable food lines then little can be expected of nudge alone to shift the terms of debate. A fortiori, quite how one might operationalise nudge in private settings is less than clear.80 Second, the notion of right choices is not free from contestation. In an earlier work, Sunstein developed his ideas concerning public choice, and one of his premises was that in their everyday lives people act in ignorance of risk.81 They thus make irrational decisions, in which they willingly engage in objectively risky activities in some areas of their behaviour whilst correspondingly displaying high degrees of risk aversion in the face of low levels of risk. On such analysis, choices are determined at the discretion of those tainted by ‘mass delusions’, namely such flaws as availability heuristics (by which he means remembered experiences which distort actual probabilities), information asymmetries and special pleading by interest groups. But that may be what autonomy looks like and there is certainly a tension between the paternalistic bent of nudge and the big society agenda in which, in the words of the UK prime minister: … the best ideas come from the ground up, not the top down. We know that when you give people and communities more power over their lives, more power to come together and work together to make life better – great things happen.82

By contrast, it could be argued that the viewpoint ignores what Simon originally termed ‘bounded rationality’, which warns that, where decision-making is largely decentralised, target groups can lack the requisite evaluative skills in order to produce reasoned decisions.83 In that R. H. Thaler, ‘Libertarian paternalism is not an oxymoron’, (2003) 70(4) Chicago Law Review 1159–1202. 80 R. Sugden, ‘Why incoherent preferences do not justify paternalism’, (2008) 19 Constitutional Political Economy 226–48. 81 C. R. Sunstein, Risk and Reason (Cambridge University Press, 2002). 82 David Cameron, Big Society Launch, 18 May 2010, available at: ­w ww.number10. gov.uk/news/big-society/. 83 H. Simon, ‘Theories of bounded rationality’, in C. McGuire and R. Radner (eds.), Decision and Organization (Amsterdam, North Holland Publishing, 1972), pp. 161– 76, at 162.

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light Sunstein’s subsequent espousal of nudge reflects his conclusion that what we would normally regard as regulation is not required to guide such choices, but that more cost-beneficial decisions can be encouraged by other means. However, securing behavioural change can only be effective if government is clear about what it regards as ‘sustainable living’ and how it aims to bring about conditions that support its achievement.84 A similar limitation affects an area of regulatory approach with which nudge shares some common ground: namely, that based upon maximising disclosure of information. Clearly the pursuit of information strategies offers a less restrictive approach than traditional regulatory controls.85 However, key factors affecting outcomes under informational approaches will be levels of visibility and understanding, and the extent of freedom to choose on the basis of information disclosed.86 Despite such limitations, informational and nudge approaches are finding favour with the UK government, not least in the ‘nudge unit’ trying to tackle problems of obesity and diet.87 This approach identifies nudge with cost effectiveness and reductions in the ‘red tape’ of regulation, and is apparently being prioritised by the coalition across government departments to the exclusion of valid claims for regulation.88 The language of choice architecture has been adopted with a range of techniques including (as well as regulatory and fiscal measures) information provision, incentives, persuasion, efforts to alter social norms, default option changes and alterations to the physical environment.89 In the most penetrating UK analysis to date of the implications of such regulatory adjustments in the above directions, a House of Lords’ Committee has voiced concern at the lack of evidence of proven effectiveness: there 84 But Yeung points out nudge has very little to say about ends rather than means: K. Yeung, ‘Nudge as fudge’, (2012) 75 Modern Law Review 122–48. 85 See, e.g., S. Breyer, ‘Analyzing regulatory failure: mismatches, less restrictive alternatives, and reform’, (1979) 92 Harvard Law Review 549–609, at 580. 86 See A. Ryall, ‘Access to environmental information in Ireland: implementation and challenges’, (2011) 23 Journal of Environmental Law 45–71. It is questionable whether the requirements of the Aarhus Convention (1999) 38 ILM 517, Art. 5(2) that the way in which public authorities make environmental information available to the public should be transparent and that environmental information should be effectively accessible is effectively transposed into the rather more technical terminology applied under Council Directive 2003/4/EC of 28 January 2003 on public access to environmental information, OJ L41, 14 February 2003, Art. 7. 87 F. Lawrence, ‘First goal of David Cameron’s Nudge Unit is to encourage healthy ­living’, The Guardian, 12 November 2010. 88 House of Lords, Science and Technology Select Committee, 2nd Report, Session 2010–12, Behaviour Change, HL Paper 179 (July 2011), para. 5.12. 89 Nuffield Council of Bioethics, Public Health: the Ethical Issues (2007) sets out a ‘ladder of interventions’, replicated in House of Lords, Behaviour Change, p. 10.

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being ‘no examples of significant change in the behaviour of a population having been achieved by non-regulatory measures alone’.90 Indeed evidence suggests that a recent contributory element in efforts to support energy efficiency in domestic properties has been less than successful. An empirical study indicates that there is both widespread non-compliance by vendors with requirements to supply ‘home efficiency reports’ to prospective purchasers, and little evidence of an effect on purchaser decisions to proceed with transactions. There is some evidence, however, that early experiments with local authority ‘retail voucher schemes’ (in collaboration with major shopping outlets) to ‘reward’ low-waste households are having some success.91 It appears that examples where some success was achieved  – relating to smoking bans and use of seat belts in motor vehicles – occurred where information strategies were pursued alongside more traditional regulatory methods. The Committee observed that in order to produce behavioural change a combination of regulation and investment in infrastructure must play an essential role. In relation to a case study concerning car usage, the Committee observed that cost effectiveness sought by ministers could not be procured at the cost of effectiveness, and that in the search for private motorised journey reductions nudge alone would ‘achieve nothing’. It concluded that a combination of regulation and infrastructure investment had an essential role in producing behavioural change, and that this required the publication of targets, with a clear setting out of reductions and timescales, and detailed steps towards their achievement.92 Worryingly, especially perhaps in relation to the meeting of climate change goals in accord with obligations contained in the Climate Change Act 2008, the Committee concluded that there remains a woeful lack of hard evidence concerning the potential for success or otherwise of nudge strategies in changing individual behaviours and the conditions that are most (and indeed least) likely to contribute.93 If these approaches are to be pursued then this points to an urgent need for research on the part of social psychologists, epidemiologists, neuroscientists and those working in cognate areas to produce more robust data to form the basis of informed decision-making. Viewed as a problem of governance, there is nothing improper per se about the application of coercive rules through due process of law.94 90 House of Lords, Behaviour Change, para. 5.6 91 ENDS Report 434 (March 2011), 46. 92 House of Lords, Behaviour Change, paras. 5.8–10, 7.47–48, 8.28–­32. 93 House of Lords, Behaviour Change, para. 1.5. 94 In a criminal law context, Husak makes the wider point that it is beholden on the state to ‘go on to describe the conditions under which legitimate state interests should be

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Whilst Thaler and Sunstein have sought to tackle what they define as the least tractable of problems affecting human health and environmental degradation, questions arise as to whether nudge can be justified on the authors’ terms as being truly libertarian or even paternalistic. Far from promoting individual autonomy, in seeking to exploit decisionmaking irrationalities (such as status quo bias and inertia effect) the means applied under nudge appear as a form of manipulation, which, on grounds of non-transparency, arguably poses a greater threat to autonomy than open constraint.95 This is achieved at a further cost, since in exercising choice the individual decision-maker can be said to have a reduced capacity to make rational decisions, and it also becomes difficult to identify motivations underlying the decision-making process. Indeed, questions also arise from a paternalist perspective, for a fundamental character of paternalism lies in the closing of choices,96 in ways that are most obviously embedded in ‘coercion’ through regulation. The diminution of capacity referred to above with regard to those exercising ‘choice’ therefore works both ways: for in turning to nudge the state will be required to devote less attention to the tasks involved in rational persuasion.97 This carries systemic risks of a reduced ability on the part of policy and law makers to engage rationally with those to whom they are accountable, neglecting legitimating processes of justification, at the very time that society needs to confront new and potentially overwhelming environmental threats.

Conclusion

The UK’s vast criminal law statute book in creating liability in regulatory contexts is increasingly perceived as unwieldy or even out of control,98 and concluding arguments must be seen in this light. Enforcement of statutory constraints that grew out of the major industrial and social changes from the nineteenth century (first in defence of public health and then more broadly into environmental protection) has been largely framed around criminal law principles and procedures. Indeed, growing in large part out of concerns that environmental protection laws were routinely being flouted, the late twentieth century saw widespread pursued’: see D. Husak, Overcriminalization: The Limits of the Criminal Law (Oxford University Press, 2008), p. 119. 95 D. M. Hausman and B. Welch, ‘Debate: to nudge or not to nudge’, (2010) 18 Journal of Political Philosophy 123–36, at 128–31. 96 See, e.g., B. Gert and C. Culver, ‘Paternalistic behavior’, (1976) 6 Philosophy and Public Affairs 45–57. 97 Hausman and Welch, ‘Debate: to nudge’, 135. 98 See Law Commission, Criminal Liability (2011), Part ­1.

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agreement across jurisdictions for extending criminal law responses to such transgressions.99 Yet, all the while a counter-trend had been developing in many of those common law jurisdictions with most experience of deploying criminal law in support of regulatory goals: partly reflecting pressures for deregulation, and partly concerns that command-and-control can incentivise resistance, rather than innovation and cooperation, on the part of the regulated. Meanwhile, despite the predilection for command-and-control and coercion through the criminal law, the UK has encountered formidable problems. For instance, it remains extremely problematic to affix criminal liability on corporations without relying on strict liability, largely because of a rigid distinction between corporate and individual personalities. The resulting ‘no fault’ approach has created further dilemmas, including the consequence that regulatory offences are routinely regarded (even in many judicial settings) as something less than ‘real crime’,100 a factor implicated in persistently low sentencing levels.101 Further, from a practical perspective, an enforcement process based on recourse to the criminal courts places significant burdens on regulatory agencies with prosecutorial roles. This is one reason for the broad adherence compliance (based on support and guidance) as opposed to deterrence (based on enforcement) regulatory strategies remaining especially prevalent in the UK.102 As we have seen, the UK is here embarking upon a potentially profound change, as a consequence of the recent enabling of a broader portfolio of regulatory enforcement responses, which are likely to embed less formal responses, for instance through regulator-imposed ‘civil penalties’ and acceptance of undertakings. Meanwhile, as a ‘next stage’ the Law Commission is bringing a critical existential questioning as to what remains a dense mass of regulatory offences, with the continuing potential for inappropriate use. This may result in reform proposals to reduce the range and content of the criminal law in the regulatory context and for reform of doctrines such as those affecting corporate liability. It is likely therefore that the movement away 99 Council of Europe, Convention on the Protection of the Environment through Criminal Law (4 November 1998): http://conventions.coe.int/Treaty/en/Treaties/ Html/172.htm; also, Council Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law, OJ L328, 5 December 2008. 100 Wychavon DC v. National Rivers Authority [1993] 1 WLR 125, Watkins J. 101 R v. Milford Haven Port Authority [2000] JPL 943; R v. Thames Water Utilities Ltd [2010] EWCA Crim 202. 102 K. Hawkins, ‘Bargain and bluff: compliance strategy and deterrence in the ­enforcement of regulation’, (1983) 5 Law & Policy Quarterly 35–73; also, T. Smith, ‘Regulatory reform in the USA and Europe’, (1996) 8 Journal of Environmental Law

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from a model based upon a criminal law framing of command-andcontrol will require attention to more nuanced ideas as to when it is appropriate to use the criminal law, and when it is not. These developments are meanwhile reflected in evidence of contemporary concerns at over-criminalisation in other jurisdictions (whether leaning towards compliance- or deterrence-based models).103 Within the UK and elsewhere – in ‘responsive regulation’ language – especially with new levels of enforcement available, there is a vital need to re-evaluate principles that underlie coercive enforcement models in a changing regulatory context. To conclude with this in mind, the fundamental connection between environment and health has long been recognised in law, which has not hesitated to use criminal sanctions to curb environmental pollution. In the UK, much of this effort has been directed at curtailing the environmental externalities of industrial production by licensing activity and imposing strict liability for environmental pollution in the absence of such a licence or where licence conditions have been exceeded. This chapter suggests the need for a re-evaluation of the nature and focus of environmental regulation. It does so in the recognition that there are radical shifts in levels of threat from diffuse environmental impacts, which traditional regulatory approaches, being focused on localised industrial pollution, find hard to address. The chapter has suggested that the central quandary lies in society’s increasingly unsustainable patterns of consumption, as well as the social and health inequalities that exacerbate vulnerabilities to environmental threats. Such trends lead to a questioning of the actual and potential capacities of regulation to enhance the meeting of law and policy objectives, especially where that regulation takes the form of command-and-control structures dependent on the criminal law. Securing behavioural change will require the recognition of individuals as primary polluters through everyday activities, which increasingly stretch environmental resources to the limit, in a manner prejudicial to health both locally and globally. However, targeting 257–82; cf. a recent critique of the ineffectiveness of the UK stance: P. Bishop, ‘Criminal law as a preventative tool of environmental regulation: compliance versus deterrence’, (2009) 60(3) Northern Ireland Legal Quarterly 279–304. 103 For an overview of (similar) regulatory outcomes under otherwise contrasting approaches in different jurisdictions, and an argument for the benefits of improved awareness and education in wide-ranging instrumental contexts, see M. Faure, ‘Effectiveness of environmental law: what does the evidence tell us?’, (2012) 36 William and Mary Environmental Law and Policy Review 293–336, at 327–33.

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environmental regulation to address patterns of consumption requires a significant review of current approaches to environmental law.104 A key task involves looking ‘beyond the limits of earlier legal methods of control’,105 and this requires innovative responses in both law and policy. For this purpose, not only will new instruments be required but so too will new techniques, drawing on a variety of regulatory and nonregulatory measures, including those based upon informational strategies. A particular objective of our analysis is to respond to more recent debates concerning more nuanced forms of regulation, whether from pluralist or deregulatory perspectives. One focus has been to offer a critique of key aspects of nudge theory as currently evolving to play an effective and acceptable part in the generation of law and policy solutions to the significant environmental problems that we now face, especially from climate change. We express doubts about nudge not least because of the confusion as to how the choices towards which people should be nudged are to be determined. In the face of what Czarnezki has termed a democratisation of pollution sources,106 we might prefer that solutions lie in informing choices by promoting risk awareness and in extending and deepening levels of available eco-information. It is necessary also to tackle the more demanding governance tasks of determining what targeted public support measures are required, and at what appropriate levels of ­government. Such measures must deploy mechanisms across the widest range of the regulatory toolbox. The regulatory role is crucial, for frameworks have to offer clarity as to both the benefits to be derived from breaking free of the effects of unsustainable living and how society will be enabled to achieve the necessary transitions.107 This raises wider issues, including a focus on consumption, which is being promoted in other contexts as a way to ‘bring about a shift in values’ necessary to ensure social and environmental sustainability.108 The test for governance systems is whether decision-makers are willing to offer and 104 See, e.g., M. P. Vandenbergh, ‘From smokestack to SUV: the individual as ­regulated entity in the new era of environmental law’, (2004) 57 Vanderbilt Law Review 515– 628, at 518. 105 See Jewell and Steele, Law in Environmental Decision-Making, p. 21. 106 J. S. Czarnezki, Everyday Environmentalism – Law, Nature and Behavior (Washington DC, Island Press, 2011). 107 Sustainable Development Commission, Making Sustainable Lives Easier: a Priority for Governments, Business and Society (2011): www.sd-commission.org.uk/data/files/ publications/MakingSustainableLivesEasier.pdf. 108 R. Wilkinson and K. Pickett, The Spirit Level – Why Equality is Better for Everyone (Harmondsworth, Penguin, 2010), p. 270.

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elaborate upon a more positive programme in seeking the achievement of environmentally sustainable outcomes. This chapter suggests a need for a re-conceptualisation of regulatory possibilities. But the task of shifting paradigms, when thinking is embedded, is not always easy, as Snow discovered all of a century and a half ago.

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Criminal law and global health ­governance David P. Fidler



Introduction

The relationship between public health and criminal law includes international dimensions that deserve exploration. Often, analyses of public health’s interactions with criminal law do not address these international dimensions,1 and examination of global health frequently ignores international criminal law2  – perhaps for good reason. The relationship between public health and criminal law reveals that public health authorities have not, historically, strongly utilized concepts, strategies, and mechanisms that states use to cooperate on cross-border criminal challenges. Developments in global health governance over the past ten to 15 years, ranging from the Global Fund to Fight AIDS, Tuberculosis, and Malaria to the Pandemic Influenza Preparedness Framework, do not use criminal law. This reality should not be surprising given the difficult relationship that public health and criminal law have long had within countries. Nevertheless, as this chapter explores, how public health and criminal law overlap in international relations is complex, and, through studying this complexity, insights emerge. International criminal law relevant to population health has predominantly arisen outside traditional channels of global health governance, such as the World Health Organization (WHO). This law draws attention to serious harms to health caused by cross-border criminal behaviour. Such criminal activities can directly and indirectly threaten the security of a person’s or a population’s health. Where relevant to public health, law addressing cross-border criminal activities forms part of global health governance and contributes to efforts to strengthen health security at the individual, 1 See, e.g., Zita Lazzarini, Richard Goodman, and Kim Dammers, ‘Criminal law and public health practice’, in Richard A. Goodman, Richard E. Hoffman, Wilfredo Lopez, Gene W. Matthews, Mark Rothstein, and Karen Foster (eds.), Law in Public Health Practice, 2nd edn (Oxford University Press, 2007), pp. 136–67. 2 See, e.g., David Fidler and Martin Cetron, ‘International considerations’, in Goodman et al., Law in Public Health Practice, pp. 168–95.

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national, and global levels. National and international criminal law touching upon public health operates like criminal law generally – as an instrument of individual and community security and justice. Internationally, use of criminal law helps raise the political profile of health because it connects health with questions about law and order, security, and justice in an increasingly globalized world. However, for public health, this prominence often results from policy failures to prevent and protect populations from suffering serious health harms. Put differently, the more criminal law overlaps with public health in global governance, the less health security individuals and populations have. In this sense, criminal law represents a sub-optimal way to advance population health and health security in world affairs. This dynamic can be seen in recent developments that feature global health experts, leaders, and institutions using or advocating for more international criminal law to address two serious global health threats – illicit trade in tobacco products and in falsified or fraudulent medical products. These threats constitute growing dangers for individual and population health security and reflect the malevolence of organized crime operating on a local, national, and global scale. This turn towards criminal law is less about innovation in global health governance as it is a reflection of such governance struggling to contain mounting challenges to health security from transnational organized crime. In this light, developments involving criminal law might be necessary responses to these health threats, but they are far from being sufficient to achieve the kind of health security and justice that public health theory, ethics, and practice aim to achieve.

Crime and international law

Analyzing how criminal law affects global health governance begins with understanding how states deal with crime in international relations. Over time, states have developed principles, strategies, and mechanisms that facilitate cooperation on crime involving cross-border elements. These rules and approaches are anchored in basic principles of international law and guide how states handle criminal issues in all areas, including public health. In brief, states address crime in their relations under three categories: (1) general purpose criminal law cooperation; (2) elevating certain crimes in international law through harmonizing substantive criminal law and through enhancing law enforcement cooperation; and (3) developing and enforcing international crimes related to armed conflict.

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General principles of international law governing adoption, adjudication, and enforcement of criminal law

General principles Basic principles of international law structure cooperation on criminal matters, most importantly the principles of sovereignty and nonintervention in the domestic affairs of states. Sovereignty establishes political authority over territory, and, as a function of such authority, governments exercise jurisdiction over geographical space and people within, or associated with, that space. The link between sovereignty and jurisdiction explains why states have developed international legal rules governing the exercise of jurisdiction. Generally, international law recognizes three types of jurisdiction: jurisdiction to prescribe, to adjudicate, and to enforce law.3 Jurisdiction to prescribe law means that a state has the right to apply its laws to persons, relations, or activities. Prescriptive jurisdiction is non-controversial when exercised within a state’s boundaries because the state has sovereignty over this territory. Problems arise when states apply their laws to activities or persons outside their territories, so international law contains rules regulating extra-territorial application of domestic law.4 Jurisdiction to adjudicate refers to the authority a state has to subject persons, things, or activities to judicial processes. International law holds that a state can only exercise jurisdiction to adjudicate when the person, thing, or activity has sufficient connections with that state to make the exercise of such jurisdiction reasonable. Jurisdiction to enforce means that a state has the authority to induce or compel compliance with its laws and to punish non-compliance. These jurisdictional rules apply to criminal law, but criminal law gives rise to heightened concerns about jurisdiction to enforce that flow from the principles of sovereignty and non-intervention. Under criminal law, governments investigate alleged violations and impose coercive sanctions on people found in violation of them. Attempts to investigate or apply sanctions inside the territory of another state without its consent constitute illegal intervention into that state’s domestic affairs and a violation of its sovereignty.5 Thus, as a general matter, jurisdiction to enforce criminal law is very territorial in international law. 3 American Law Institute, Restatement of the Law (Third): Foreign Relations Law of the United States, 2 vols. (St. Paul, American Law Institute Publishers, 1987), vol. I, pp. 230–339. 4 Vaughan Lowe, ‘Jurisdiction’, in Malcom Evans (ed.), International Law (Oxford University Press, 2003), pp. 329–55. 5 Ian Brownlie, Principles of Public International Law, 5th edn (Oxford University Press, 1998), p. 310.

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The general principles and public ­health International legal rules on jurisdiction have not been prominent in public health theory and practice for two reasons. First, with the exception of the late nineteenth century when governments used criminal law more for public health purposes,6 the preferred approaches of public health authorities generally avoid criminal law. Similarly, objectives in global health governance centre on activities that do not depend on criminal law. For example, the International Health Regulations (2005),7 adopted by WHO, seek to improve surveillance and response capacities against serious disease events, but this treaty does not mention, let alone rely on, criminal law concepts or mechanisms. In short, we have not seen much public health demand for extra-territorial prescriptive jurisdiction and heightened cooperation among law enforcement agencies to investigate and prosecute individuals for criminal acts. Second, when public health agencies have resorted to criminal law, the contexts have tended to be local rather than trans-boundary in nature (for example, a person’s resistance to a quarantine order; malicious release of hazardous wastes; selling alcohol to minors). This observation does not mean that such problems do not have cross-border features, as illustrated by trans-boundary pollution. However, not all efforts against cross-border problems involve criminal law. For example, many treaties addressing cross-border pollution do not include criminal law elements,8 and public health experts have not proposed using criminal law to address such pollution. In fact, with respect to international law on illicit trade in narcotic drugs,9 public health experts have found fault with strategies that emphasize criminalization but do not adequately address the health consequences of drug abuse and the need to treat and rehabilitate those addicted to illicit drugs.10 Tension between criminalization and public health approaches appeared in controversies about needle-exchange 6 Lawrence Gostin, Public Health Law, 2nd edn (Berkeley, University of California Press, 2008), p. 151. 7 International Health Regulations (2005), 23 May 2005, 2509 UNTS 134. 8 Philippe Sands, Principles of International Environmental Law, 2nd edn (Cambridge University Press, 2003), pp.  322–57. The Council of Europe’s Convention on the Protection of the Environment through Criminal Law, 4 November 1998, European Treaty Series No. 172, has never entered into force because it only has 13 signatories and one state party as of 9 February 2012. 9 Single Convention on Narcotic Drugs, 30 March 1961, 520 UNTS 557; Convention on Psychotropic Substances, 21 February 1971, 1019 UNTS 175; and UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, 1582 UNTS 95. 10 David Fidler, International Law and Public Health (Ardsley, NY, Transnational Publishers, 2000), pp. 209–10.

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programmes designed to help addicts avoid blood-borne infections, such as HIV/AIDS, and provide access to services to overcome addiction. In situations where criminalization potentially interferes with access to health services or public health strategies, public health advocates have argued that such interference (for example, criminalization of HIV transmission11 or access to sexual and reproductive health services12) infringes on human rights protected in international law without advancing population health. Public health concerns with criminalization in these and other contexts usually have nothing to do with general principles of international law on jurisdiction concerning cross-border criminal law matters.

Strengthening international cooperation on implementing national criminal law: general purpose criminal law strategies



Extradition and mutual legal assistance

The manner in which the principles of sovereignty and non-intervention produce the international legal rules on jurisdiction means that states must cooperate on criminal matters that have cross-border elements, especially with respect to enforcement jurisdiction. States have developed general-purpose mechanisms that facilitate cooperation on criminal and law enforcement problems – namely, treaties that permit extradition of criminal suspects and obligate states to engage in law enforcement cooperation. Under bilateral extradition treaties, one state – the requesting state – can ask another state – the requested state – to take custody over a person accused of committing a crime in the requesting state and return (extradite) that person to the requesting state.13 Extradition treaties cover crimes generally and are not usually specific to any kind of crime. Typically, the only limiting scope factor is the requirement of ‘double criminality’  – the crime subject to the extradition request has to be a crime in the requesting and requested states. Extradition treaties usually permit a state party to reject an extradition request because it 11 UN Development Programme and UNAIDS, Criminalization of HIV Transmission (Policy Brief, August 2008). 12 UN General Assembly, Interim Report on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, 3 August 2011, UN Doc. A/66/254. 13 See, e.g., UN Model Treaty on Extradition, G.A. Res. 45/116, annex, 45 UN G.A.O.R. Supp. (No. 49A), at 212, UN Doc. A/45/49 (1990).

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believes the activity in question was political rather than criminal in nature – the ‘political offence’ doctrine. States have also developed processes that facilitate cooperation between law enforcement agencies. Often, a law enforcement agency wants assistance from another country in connection with investigating cross-border criminal activity. One of the leading mechanisms in this area is the mutual legal assistance treaty (MLAT).14 Like extradition treaties, MLATs have broad scope and are not usually limited to particular areas of law enforcement concern. More broadly, states have established international organizations that aid law enforcement cooperation, such as the International Police Organization (INTERPOL).

Public health, extradition treaties, and MLATs

As with the international legal rules on jurisdiction, public health theory and practice do not indicate that general-purpose criminal law cooperation mechanisms are important for the mission of protecting population health. Extradition treaties can and do cover crimes that affect public health, as illustrated by the extradition treaty between the US and Colombia, which includes ‘[o]ffenses against public health, such as the illicit manufacture of or traffic in chemical products or substances injurious to health’.15 Such coverage in extradition treaties means that MLATs are relevant for investigating crimes with cross-border features related to public health. However, public health experts specialize in epidemiology rather than criminology, so general-purpose criminal law cooperation agreements tend not to matter much in public health. Indeed, as explored below, when public health has turned to criminal law strategies, it seeks new international instruments rather than application of general-purpose criminal law cooperation mechanisms.

Addressing crimes of international importance: harmonizing criminal law and enhancing law enforcement cooperation on specific problems

The second category of strategies involves deepening international cooperation on specific criminal activities. Under this approach, states: adopt treaties or other binding legal instruments on specific problems 14 See, e.g., the UK’s Bilateral Agreements on Mutual Legal Assistance in Criminal Matters, at www.fco.gov.uk/resources/en/pdf/3706546/10773698/FCO-Tr-MLA. 15 Treaty of Extradition between the United States of America and the Republic of Colombia, 14 September 1979, Treaty Doc. 97–8, 1 June 1981, Schedule of Offenses, para. 22.

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that states perceive to be of heightened international concern; ­harmonize national criminal law on those problems; strengthen enforcement of the harmonized criminal offences; and enhance law enforcement cooperation concerning such offences. Not all treaties or other instruments that fall in this category accomplish all these objectives because some focus only on harmonization of national criminal law. However, this category contains efforts to identify specific crimes of international importance and strengthen law enforcement cooperation on such crimes, as opposed to simply coordinating implementation of domestic criminal laws.

Harmonization of criminal law on crimes of international importance

In terms of harmonizing national criminal law on particular problems of international concern, treaties and other binding instruments (for example United Nations (UN) Security Council resolutions) (1) define certain acts as prohibited or criminal offences; and (2) require or encourage states to criminalize these offences in national law. These elements attempt to harmonize national criminal law on specific problems through international law, which elevates the global significance of these crimes. Different policy sectors use this approach, including counter-terrorism, cybersecurity, and human rights. Some problems addressed through this strategy overlap with global health concerns related to health security. For example, the UN Torture Convention defines ‘torture’ and obliges states parties to make torture a crime in their national legal systems.16 The International Convention on the Suppression of Terrorist Bombings defines the offence of terrorist bombing and requires states parties to criminalize this offence in domestic law.17 The International Labour Organization’s Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour defines ‘worst forms of child labour’ and mandates that states parties implement and enforce the Convention’s prohibition through criminal sanctions.18 The Chemical Weapons Convention defines ‘chemical weapon’, prohibits development, production, stockpiling, 16 Convention against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85. 17 International Convention on the Suppression of Terrorist Bombings, 15 December 1997, 2149 UNTS 256. 18 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, 17 June 1999, 2133 UNTS 161.

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transfer, and use of chemical weapons, and mandates states parties implement these prohibitions in national law, including criminal law.19 Sometimes, harmonization of national criminal law happens without an express criminalization mandate. For example, the Biological Weapons Convention (BWC) prohibits the development, production, stockpiling, and transfer of biological weapons, and it requires BWC states parties to implement this prohibition in national law20 – a requirement many states parties interpret as requiring national criminalization of acts involving biological weapons. In Resolution 1540, the UN Security Council required UN members to take action to prevent biological, chemical, and radiological materials from falling into the hands of non-state actors, including terrorists21 – a legally binding mandate many UN members fulfil by enacting national criminal law. INTERPOL has also become involved in helping countries improve their criminal laws and strengthen their law enforcement cooperation on biological, chemical, radiological, and nuclear terrorism.22

Enhancement of criminal law enforcement and law enforcement cooperation

International law contains treaties that, in addition to harmonization duties, include provisions for enhancing enforcement and cooperation concerning crimes of international importance. These provisions include obligations to: • take jurisdiction over the defined crimes under international legal principles on jurisdiction, and, with certain crimes, under the principle of ‘universal jurisdiction’; • exclude the defined crimes from the political offence doctrine concerning extradition; • extradite persons accused of committing the offences to states parties with jurisdiction, or prosecute such persons under traditional jurisdictional authority or universal jurisdiction; and • strengthen law enforcement cooperation and assistance for investigating and prosecuting such offences. 19 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 3 September 1992, 1974 UNTS 45. 20 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 UNTS 163. 21 UN Security Council, Resolution 1540, 28 April 2004, S/RES/1540 (2004). 22 INTERPOL, CBRNE Programme, www.interpol.int/Crime-areas/Terrorism/ CBRNE-programme/Bioterrorism.

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So, for example, the UN Torture Convention obligates states parties to take jurisdiction over acts of torture committed in their territories, by their nationals located abroad, or anywhere in the world (universal jurisdiction). Under this Convention, a state party receiving an extradition request related to alleged torture could not refuse the request under the political offence doctrine. The state party must extradite a person accused of committing torture or prosecute that person regardless of where the torture allegedly occurred. This ‘extradite or prosecute’ duty, combined with universal jurisdiction, allows any state to detain, prosecute, and punish alleged torturers because torture constitutes a crime under international law enforceable by any state, as opposed to just a crime under national law subject to traditional extradition and law enforcement cooperation mechanisms. Universal jurisdiction aims to ensure that offenders have nowhere to hide from justice. The UN Torture Convention also contains duties on law enforcement cooperation and assistance on suspected incidents of torture. This approach differs in important ways from the general-purpose mechanisms described earlier. First, unlike the broad scope of extradition agreements and MLATs, treaties and other instruments in this second category target particular problems, such as torture, chemical or biological weapons proliferation, the worst forms of child labour, or terrorist acts. The problems targeted by this approach often represent threats to human, national, and/or international security. Second, states typically have not used extradition treaties and MLATs to harmonize national criminal law, whereas harmonization is a strategic objective in this second category. Third, the ‘extradite or prosecute’ obligation and the concept of universal jurisdiction do not appear in extradition treaties or MLATs, and these features elevate the international importance of these crimes. Fourth, the treaties focused on specific problems create heightened law enforcement cooperation than more generalized MLATs achieve.

Public health and crimes of international concern

Efforts to create crimes of international concern connect to public health more than with general-purpose criminal cooperation mechanisms. A number of treaties that fall within this category address issues of concern to public health and health security, including torture, proliferation of weapons of mass destruction, exploitation of child labour, and terrorist violence. Although none of the legal instruments in this category emerged from processes directly associated with global health governance, such as WHO, public health activities have a stake in

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enforcement of harmonized criminal law on these and other specific health security problems. For example, global health activities have a close association with biosecurity efforts to address proliferation and use of biological weapons – efforts that include criminal law. One important development in the past ten to 15 years has been the extent to which fears about terrorist use of biological weapons have forced law enforcement, national security, and public health experts to cooperate in unprecedented ways. As is explored in Chapter 10 of this book, ‘forensic epidemiology’ developed to bridge public health and law enforcement roles in determining whether biological events involved violation of criminal laws. Informing these laws are the international legal mandates in the BWC and UN Security Council Resolution 1540. However, public health involvement with efforts to address biological weapons and terrorism has been more significant in non-criminal areas, such as improving surveillance as a component of biosecurity, because public health expertise centres on such epidemiological activities. Another example of the global health relevance of certain crimes having heightened international importance comes from the UN Convention against Transnational Organized Crime (UNCTOC)23 – a treaty that follows the harmonize/enforce/cooperate template described earlier. The UNCTOC applies to serious criminal offences that are transnational in nature and involve an organized criminal group  – a scope that captures many types of transnational crime detrimental to individual and population health. The UNCTOC process has itself produced legal instruments on problems that are serious global health security concerns, namely trafficking in women and children,24 smuggling migrants, 25 and illicit manufacture and trafficking of firearms.26 However, the nature of these transnational criminal problems, especially involvement of violent criminal groups, means that public health capabilities and interventions have little impact on preventing and protecting against the health problems associated with these transnational criminal activities. Thus, a criminal law approach becomes part of ­global health governance efforts to get these problems under control. 23 UN Convention against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209. 24 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 15 November 2000, 2237 UNTS 319. 25 Protocol against the Smuggling of Migrants by Land, Sea, and Air, 15 November 2000, 2241 UNTS 507. 26 Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition, 31 May 2001, 2326 UNTS 208.

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The focus on specific problems in treaties and other instruments utilizing international criminal law strategies has raised the profile of the health aspects of these issues. Increased attention on problems, such as trafficking in women and children, provides opportunities for health experts to provide information on the adverse physical, mental, and population health consequences of these criminal activities.27 Such input also makes these criminal activities global health issues that call for more attention to the (1) health, well-being, and human rights of the victims; and (2) political, economic, and social determinants that make women and children vulnerable to trafficking. Thus, instruments of international criminal law can help elevate health inputs on preventing, protecting against, and responding to transnational criminal activities – inputs the criminal law approach can neglect given its law enforcement focus. However, such a raised profile for global health emerges with respect to problems affecting population health that are getting worse rather than better. States typically do not negotiate treaties on problems that existing policies and governance instruments effectively handle. Proliferation of treaties that identify certain crimes as internationally important by harmonizing national criminal law, enhancing enforcement, and strengthening law enforcement cooperation suggests that the problems are increasing as threats to various interests, including public health and health security. This context is not good for global health governance. In addition, adoption of treaties and other instruments in this category does not, by itself, produce an effective response for many reasons, including lack of acceptance by states and weak implementation by states parties. Despite the UN Torture Convention, human rights advocates identify torture as a continuing global problem.28 Similarly, widespread ratification of the UNCTOC’s Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children has not diminished this increasing global problem.29 Concerns also exist as to whether the BWC can adequately address threats from state proliferation of biological weapons or terrorist acquisition of biological 27 See, e.g., Catherine Zimmerman, Katherine Yun, Charlotte Watts, Inna Shvab, Luca Trappolin, Mariangela Treppete, Franca Bimbi, Sae-tang Jiraporn, Ledia Beci, Marcia Albrecht, Julie Bindel, and Linda Regan, The Health Risks and Consequences of Trafficking in Women and Adolescents: Findings from a European Study (London, London School of Hygiene and Tropical Medicine, 2003). 28 See, e.g., Human Rights Watch, Torture, at www.hrw.org/category/topic/torture. 29 US Department of State, Trafficking in Persons Report 2011 (Washington, DC, Department of State, 2011).

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weapons capabilities. Establishing ineffective international criminal regimes on issues relevant to public health and health security does not help global health governance.

Armed conflict and international criminal law



Armed conflict, crime, and international humanitarian law

The third category of international criminal law arises from international law on armed conflict, also known as international humanitarian law (IHL), which attempts to regulate international and non-international armed conflict. These rules address how armed forces engage in armed violence, treat wounded or captured enemy combatants, deal with civilian populations, occupy enemy territory, and interact with countries seeking to be neutral with respect to ongoing armed conflict. Over time, states assigned criminal liability to violations of certain IHL rules. At first, states criminalized violation of the laws of war under national law. However, after World War II, states criminalized certain violations of the law of armed conflict in treaty law and customary international law. Thus, today, IHL includes the crime of aggression, the crime of genocide, crimes against humanity, and war crimes, and states can prosecute alleged violations of these international crimes under universal jurisdiction in customary international law. States have also established ad hoc and permanent international tribunals to investigate and prosecute persons alleged to have committed crimes during armed conflicts in an effort to ensure that combatants cannot violate IHL with impunity. Examples of international war crime tribunals include the Nuremberg and Far East Military Tribunals established after World War II, the International Criminal Tribunals for the Former Yugoslavia and Rwanda created by the UN Security Council in the 1990s, and the permanent International Criminal Court that began operating in the early 2000s.

International criminal law in IHL and global health

Armed conflict always damages population health and threatens health security, and, thus, war is a global health concern. IHL reflects the adverse health consequences of war and contains rules that attempt to protect the health of combatants, prisoners of war, and civilians. IHL also tries to protect military and civilian personnel and facilities providing medical services during armed conflict. Violations of these

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health-oriented rules can constitute crimes under IHL, which gives these aspects of IHL particular relevance for global health governance. International tribunals have found persons guilty of war crimes for violating IHL rules designed to protect the health and well-being of soldiers and civilians.30 Such tribunals have brought cases and developed jurisprudence on armed conflict in ways that criminalize aspects of war that are particularly sinister from a health security perspective, such as forcing children to be soldiers31 or using rape as a means of warfare.32 This overlap in IHL between international criminal law and health helps heighten the profile of health issues in armed conflict and provides opportunities for public health experts to weigh in on these problems,33 much in the same way that creating crimes of international importance opens space for the global health community to engage more directly with international criminal law. At the same time, whether engagement of global health experts with international criminal law in IHL has much effect on the problems at hand is questionable. Most of these rules, and their criminalization, developed for many humanitarian and ethical reasons and do not owe their existence to public health. For example, framing ‘rape as a weapon of war’ as a health or health security issue does not, in any meaningful way, increase the vile nature of this condemned criminal activity or advance any new constructive way to end its prevalence in armed conflict. Although IHL and its criminal components form part of global health governance, the effectiveness of IHL and international criminal law in armed conflict remains a concern generally and with respect to global health’s interests in the consequences of war. Armed conflicts continue to break out, and atrocities and violations of IHL occur routinely during such warfare, which raises questions about the deterrence value of international criminal law in IHL. In addition, punishment of perpetrators of war crimes remains the exception not the rule, leaving the goal of ‘no impunity’ a distant prospect. The involvement of global health experts in IHL has not changed this dynamic or made international criminal law in IHL more effective. These observations highlight, again, the tension between the global health ethos of preventing 30 David Fidler, International Law and Infectious Diseases (Oxford, Clarendon Press, 1999), pp. 238–39. 31 International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04–01/06, Decision on the Confirmation of Charges, 29 January 2007. 32 International Criminal Tribunal for Rwanda, Prosecutor v. Akayesu, Case No. ICTR96–4-T, Judgment, 2 September 1998. 33 See, e.g., Leonard Rubenstein, Protection of Health Care in Armed and Civil Conflict (CSIS Global Health Policy Center Report, January 2012).

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and protecting against health harms and criminal law’s deployment when prevention and protection efforts fail.

Global health developments involving international criminal law: illicit trade in tobacco products and falsified medical products

A theme running across the international criminal law relevant to global health governance is that such law did not emerge from governance processes typically associated with global health. National and international public health authorities had no discernible roles in developing extradition treaties and MLATs as general purpose mechanisms for international cooperation on criminal law. The creation of crimes of international importance happened in areas of concern for global health, but global health organizations did not lead efforts to create these crimes. Global health experts have also not been prominent players in the evolution of international criminal law in IHL. Each category of international activity on criminal law has some relevance for global health governance, but one would be hard pressed to argue that international criminal law’s development makes this law a leading aspect of global health governance. However, recent developments indicate that something new is afoot in the relationship between criminal law and global health. In two areas – illicit trade in tobacco products and in falsified medical products – global health experts are proposing international criminal law strategies to address these problems. These efforts represent a direct move by global health into international criminal law, and we have not previously seen such direct use of, or willingness to use, international criminal law by global health players. These developments deserve exploration even though they have yet to produce, and may not achieve, global health governance contributions to international criminal law.

Illicit trade in tobacco products

The WHO’s Framework Convention on Tobacco Control (FCTC) is a groundbreaking international legal regime for global health.34 It is the first treaty WHO adopted under its constitutional powers to adopt conventions, and the FCTC aims to improve national and international efforts to address the pandemic of tobacco-related diseases. The FCTC contains provisions that oblige and encourage states parties to address the demand and supply sides of the global tobacco problem. 34 Framework Convention on Tobacco Control, 21 May 2003, 2302 UNTS ­166.

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However, none of the FCTC’s binding obligations expressly require states parties to adopt criminal law in implementing the treaty. The phrase used in different provisions mandates that states parties ‘adopt and implement effective legislative, executive, administrative or other measures necessary to implement its obligations’.35 This litany could include criminal measures, and the FCTC anticipates that some states parties will use criminal law because it provides that states parties ‘shall consider taking legislative action or promoting their existing laws, where necessary, to deal with criminal and civil liability’.36 This approach means that the FCTC does not fall within the second category of international criminal law involving harmonization of national criminal law on identified problems. It comes closest with respect to its provisions on illicit trade in tobacco products, which require states parties to implement measures to eliminate such trade.37 Still, these provisions do not explicitly demand that states parties criminalize such trade. FCTC states parties addressed criminalization with respect to illicit trade in tobacco products in negotiations on a FCTC protocol to eliminate such trade concluded in April 2012.38 This protocol marks the first time the leading international organization in global health governance – WHO – has supported use of criminal law as part of responding to a global health problem. WHO has done so because illicit trade in tobacco products constitutes a threat to global efforts to reduce tobacco supply and demand. Including criminalization in the protocol, however, created difficulties in the negotiations and raised questions about the FCTC states parties’ handling of criminal law issues. An analysis of the March 2010 negotiating text argued that it ‘fails to identify a set of core conducts that all States Parties should criminalize’, a failure that could ‘prompt à la carte law enforcement and international cooperation, with very limited harmonisation among countries’.39 Informal negotiations in September 2011 revealed problems, for example, with what kind of extradition and mutual legal assistance provisions the protocol should contain.40 The question whether the protocol should have extradition provisions was 35 Ibid., Article 7, p. ­234.  36  Ibid., Article 19, pp. 240–41. 37 Ibid., Article 15, pp. 238–39. 38 Intergovernmental Negotiating Body on a Protocol on Illicit Trade in Tobacco Products, Draft Protocol to Eliminate Illicit Trade in Tobacco Products, 4 April 2012, FCTC/COP/INB-IT/5/5 [hereinafter FCTC Protocol]. 39 Transcrime, Analysis of the Draft Protocol to Eliminate Illicit Trade in Tobacco Products (March 2012), p. 5. 40 Paulo Arantes, ‘Final Negotiations for a Protocol to Eliminate Illicit Trade in Tobacco Products’, Health Diplomacy Monitor 2 (November 2011), 11–13.

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raised, especially because bilateral extradition treaties and the widely ratified UNCTOC provide ways to seek extradition for serious criminal cases of illicit trade in tobacco products. In fact, negotiating texts of the protocol directly modelled their criminal law provisions on UNCTOC.41 One expert argued that ‘[w]hat states should be seeking is more effective application of the existing UNCTOC regime to serious illicit tobacco crime rather than duplicate that regime in the protocol’.42 The protocol agreed by the FCTC states parties in April 2012 includes provisions related to criminal law, and it does not leave the criminal aspects of illicit trade in tobacco products for states to handle under general law enforcement cooperative arrangements, such as extradition treaties or MLATS, or, where applicable between FCTC states parties, the general UNCTOC. The protocol attempts to integrate measures designed to prevent illicit trade (for example requirements for licensing, tracking and tracing, and record keeping) with provisions involving criminal law. However, the FCTC states parties did not make the protocol reflect the strategy of harmonizing national criminal law and strengthening law enforcement cooperation based on such harmonization discussed earlier. The protocol requires states parties to make unlawful in domestic law specific types of conduct related to illicit trade in tobacco products (for example exporting tobacco products without a licence).43 However, the protocol does not require states parties to criminalize any such unlawful conduct; it leaves criminalization decisions to each state party.44 Thus, the protocol does not achieve harmonization of national criminal law on illicit trade in tobacco products in the manner other treaties did for crimes deemed to be of international concern, such as torture, human trafficking, and development of chemical weapons. Thus, the protocol does not directly elevate unlawful acts related to illicit trade in tobacco products to the status of crimes of international importance. At best, the protocol adopts an indirect or ‘soft’ approach to harmonization of national criminal law. This outcome suggests that a sufficient number of FCTC states parties opposed mandated harmonization of national criminal law on this 41 See Intergovernmental Negotiating Body on a Protocol on Illicit Trade in Tobacco Products, Draft Protocol to Eliminate Illicit Trade in Tobacco Products, 21 March 2010, FCTC/COP/INB-IT/4/7. 42 Neil Boister, ‘Extradition for Illicit Tobacco Trade Crimes: Which Crimes and How?’, Framework Convention Alliance Bulletin, Issue 99, 16 March 2010, p.  2. See also Transcrime, p. 5 (noting protocol use of UNCTOC creates potential of duplicating existing measures). 43 FCTC Protocol, Article 14(1).  44  Ibid., Article 14(2).

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issue. While tobacco consumption, helped by illicit trade, is a global health problem, such trade might not warrant heightened criminal law attention and expenditure of scarce law enforcement resources for all FCTC states parties compared with other transnational criminal activities. Global health officials are not well-positioned to weigh in on trade-offs law enforcement and criminal justice authorities have to make in protecting law and order from multiple national and transnational threats. The protocol reflects the desire of FCTC states parties to retain sovereign discretion about criminalizing acts related to illicit trade in tobacco products. Similarly, the protocol also emphasizes the principles of sovereignty and non-intervention discussed earlier, and it explicitly states that the protocol does not entitle any state party ‘to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law’.45 The lack of harmonization of national criminal law affects other law enforcement aspects of the protocol. Protocol provisions on establishing jurisdiction, engaging in law enforcement cooperation, providing mutual legal assistance, and extradition are expressly linked to criminal offences states parties adopt in their respective domestic laws.46 The impact of these provisions depends on whether and how states parties actually criminalize activities related to illicit trade in tobacco products. For example, the protocol’s provision on extradition includes the ‘double criminality’ principle,47 meaning that, if a requested state has not criminalized an offence as the requesting state has done, extradition cannot proceed. In other contexts, mandated harmonization of national criminal law seeks to ensure that ‘double criminality’ is not an issue in terms of extradition for the criminal offences in question. The existence of disparate national criminal law on illicit trade in tobacco products could affect other aspects of the protocol on international cooperation, including mutual legal assistance, which states parties can decline to render when dual criminality is not present.48 In essence, the protocol reflects the general international legal approach to criminal law matters described earlier: emphasis on sovereignty and non-intervention, discretion on what conduct to criminalize in national law, and use of general instruments on extradition and mutual legal assistance to effect international criminal and law enforcement cooperation. This outcome does not mean that the protocol’s criminal law provisions will be ineffective in application. At present, 45 Ibid., Article ­25.  46  Ibid., Articles 26, 27, 29, and 30. 47 Ibid., Article 30(1).  48  Ibid., Article 29(18).

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it simply means that the FCTC states parties did not agree to make conduct related to illicit trade in tobacco products crimes of international concern through harmonization of domestic criminal law and enhanced international law enforcement cooperation based on such harmonization. The protocol’s effectiveness in terms of criminal law and law enforcement will depend on many factors, including how many FCTC states parties ratify it and whether those that ratify have (or can develop and maintain) sufficient capabilities to utilize criminal law against illicit trade in tobacco products. The mixed record of state implementation of, and compliance with, treaties that use criminalization strategies means that, after adoption, the protocol will face difficulties in achieving effectiveness. Finally, the protocol includes more than criminal and law enforcement provisions, so its impact will not necessarily succeed or fail based on its criminal law elements. In any event, the protocol’s incorporation of criminal law in the strategy against illicit trade in tobacco products bears watching as a global health-initiated attempt to harness criminal law for improving population health.

Trade in falsified medical products

In recent years, global health officials have raised the alarm about the production, distribution, and sale of fake, fraudulent, or falsified medical products.49 Such products, especially medicines, can directly damage health by containing unsafe substances, and they can indirectly harm health by doing nothing for the medical conditions patients have. This problem’s growing scale indicates that transnational organized criminal groups are involved in a major way. As part of countering this global health menace, international criminal law approaches and proposals have emerged. These efforts include utilizing existing criminal law and law enforcement cooperation mechanisms and the actual and proposed creation of new treaties to make trade in falsified medical products a crime of international concern. Improving use of existing criminal law and law enforcement cooperation: INTERPOL activities on pharmaceutical crime Since at least 2008, INTERPOL has coordinated law enforcement operations against what it calls pharmaceutical crime – ‘the manufacture, 49 See World Health Organization, Medicines: ­Spurious/Falsely-Labeled/Falsified/ Counterfeit (SFFC) Medicines, Fact Sheet No. 275, January 2010, at www.who.int/ mediacentre/factsheets/fs275/en/index.html.

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trade and distribution of counterfeit, diverted, stolen and illicit medicines and medical devices’  – in East Africa, West Africa, Southeast Asia, and the Internet.50 INTERPOL argues that such international law enforcement cooperation demonstrates the need for and promise of such operations: ‘Successive raids on licit and illicit markets have shown improved results in terms of seizures, arrests, convictions and the closure of illicit websites.’51 In addition to coordinated operations, INTERPOL engages in training law enforcement agencies to confront pharmaceutical crime and in building partnerships across the sectors affected by such crime, including national and global health authorities. INTERPOL’s activities utilize existing national systems of criminal law and international law enforcement cooperation mechanisms and have not, to date, involved efforts to make pharmaceutical crime a crime of heightened international concern through a new treaty. Making trade in falsified medical products a crime of international concern The problem of transnational trade in falsified medical products has become sufficiently pervasive that international organizations, governments, and non-governmental experts have made or proposed moves towards making this health security problem a crime of international concern through existing or new international legal instruments. These developments push beyond INTERPOL activities that operate within existing national criminal law and international law enforcement cooperation processes. In December 2010, the Council of Europe adopted the Convention on the Counterfeiting of Medical Products and Similar Crimes Involving Threats to Public Health (MEDICRIME Convention), and the Council opened the MEDICRIME Convention for signature in October 2011.52 In April 2011, the UN Office on Drugs and Crime (UNODC) Commission on Crime Prevention and Criminal Justice called for an international criminalization strategy against fraudulent medicines, including potential utilization of the UNCTOC against this problem.53 In a May 2011 article, global health experts proposed that 50 INTERPOL, Pharmaceutical Crime: A Major Threat to Public Health, at ­w ww. interpol.int/Crime-areas/Pharmaceutical-crime/Pharmaceutical-crime. 51 INTERPOL, Pharmaceutical Crime: Operations, at www.interpol.int/Crime-areas/ Pharmaceutical-crime/Operations. 52 Convention on the Counterfeiting of Medical Products and Similar Crimes Involving Threats to Public Health, 28 October 2011, European Treaty Series No. 211. 53 Commission on Crime Prevention and Criminal Justice, Countering Fraudulent Medicines, in Particular Their Trafficking, Resolution 20/6, April 2011, Report on

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WHO should adopt a treaty making counterfeiting medicines an international crime54 – an idea supported by some countries and other global health experts.55 Engaging in comparative analysis of these efforts is beyond this chapter’s scope. For our purposes, the common thread is belief in the global health need to enhance international criminal law strategies against trade in falsified medical products. These three efforts generally adopt the template identified in the second category of international criminal law described earlier – identification and definition of specific offences, requirements for criminalizing such offences in national law, obligations to exercise jurisdiction over such offences (including universal jurisdiction), the duty to ‘extradite or prosecute’ alleged offenders, and provisions for mutual law enforcement cooperation and assistance. This similarity in approach is not replicated in terms of implementation. The Council of Europe did not use the existing UNCTOC, but, instead, created the MEDICRIME Convention. The UNODC Commission on Crime Prevention and Criminal Justice looked to UNCTOC’s framework rather than the MEDICRIME Convention as a way to make trade in falsified medicines punishable as a serious crime perpetrated by transnational criminal groups. The proposal for a WHO-led treaty bypasses the UNCTOC and the MEDICRIME Convention in favour of yet another international legal instrument. If nothing else, this diversity indicates the growing international concern with trade in falsified medical products and a widespread sense that states must make international criminal law a more effective weapon against this global health menace. The difficulties associated with negotiating new treaties might ­suggest efforts will gravitate towards the MEDICRIME Convention56 and/or more targeted use of UNCTOC against trade in falsified medical products. The Council of Europe has opened the MEDICRIME Convention to all states, not just members of the Council. However, as of 27 February 2012, only 15 countries had signed the MEDICRIME the Twentieth Session (3 December 2010 and 11–15 April 2011), E/CN.15/2011/21, pp. 48–49. 54 Amir Attaran, Roger Bate, and Megan Kendall, ‘Why and How to Make an International Crime of Medicine Counterfeiting’, Journal of International Criminal Justice 9 (2011), 325–54. 55 Amir Attaran, Roger Bate, and Megan Kendall, ‘A Response to Comments by Boister and McGrady’, Journal of International Criminal Justice 9 (2011), 953–57. 56 See, e.g., Laurie Garrett, Ensuring the Safety and Integrity of the World’s Drug, Vaccine, and Medicines Supply, Council on Foreign Relations Policy Innovation Memorandum No. 21 (May 2012), at www.cfr.org/global-health/ensuring-safety-integrity-worldsdrug-vaccine-medicines-supply/p28256 (recommending use of the MEDICRIME Convention as the starting framework for global efforts).

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Convention but none had ratified  – not necessarily surprising given the Council only opened the Convention for signature in October 2011. Hopes that other Council of Europe treaties would be widely accepted in the international system have not always panned out. The Council’s Convention on Cybercrime  – the first multilateral treaty addressing crime in cyberspace  – has only been ratified by 33 countries as of 25 May 2012, which limits its impact on the global problem of cybercrime. By contrast, 147 countries have joined UNCTOC as of 25 May 2012, which means that efforts to increase its use against trade in falsified medical products do not have to wait years for negotiations to occur and a critical mass of ratifications to emerge. What UNCTOC lacks is what the MEDICRIME Convention has  – criminal offences specific to falsified medical products. To use UNCTOC, states parties have to make sure how they treat falsified medical products in national criminal law fits into UNCTOC’s general application against serious crimes of a transnational nature perpetrated by organized criminal groups. Attacking trade in falsified medical products within UNCTOC could involve having UNODC engage in informal harmonization by encouraging UNCTOC states parties to ensure that their national criminal law makes trade in falsified medical products fall within UNCTOC’s scope. More formal harmonization would entail developing a new protocol specifically on trade in falsified medical products in the manner done, for example, with the UNCTOC’s protocols on trafficking in women and children, migrants, and firearms. Whether a new treaty should be negotiated through the UNCTOC process or WHO forms part of the debate about how best to pursue international criminalization against trade in falsified medical products.57 Any WHO-led efforts would have to go beyond making such trade a crime of international concern in order to address regulatory issues important to reducing the problem of falsified medical products (for example, licensing of medicine-manufacturing, importing, and retail sales). But, as WHO discovered by sponsoring negotiations for the International Health Regulations (2005), FCTC, and FCTC protocol on illicit tobacco trade, treaty negotiations are time-consuming, difficult, contentious, and expensive – potential deterrents for WHO as it faces significant budget shortfalls and calls for more strategic prioritization of its activities. 57 Neil Boister and Benn McGrady, ‘Why and How to Make an International Crime of Medicine Counterfeiting: A Reply to Attaran, Bate, and Kendall’, Journal of International Criminal Justice 9 (2011), 947–51.

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Previous efforts to make certain problems crimes of international concern also contain another warning about going down this path with falsified medical products. For treaties to be effective vessels for international criminalization, states parties must have regulatory and law enforcement commitment and capacity relevant to the crime in question. The effectiveness of many treaties in this category of international criminal law is questionable because states parties have not shown the commitment to tackle the identified problem or lack adequate law enforcement capacity to take on organized criminal groups. As global health experts know, creating treaty obligations without adequate domestic public health capacities to implement such duties does not improve global health or global health governance. For example, the International Health Regulations (2005) impose requirements on WHO members to develop and maintain core surveillance and response capacities by 2012, but a 2011 review of the use of the Regulations during the H1N1 influenza pandemic in 2009 concluded that ‘the core national and local capacities called for in the IHR are not yet fully operational and are not now on a path to timely implementation worldwide’.58 Where global health overlaps with criminal law, the same is true – mandates for international criminalization of problems of public health concern will be empty measures without appropriate law enforcement commitment and capabilities, which can be politically difficult and economically expensive to develop and sustain.

Conclusion: criminal law as an instrument of global health governance

Efforts to address population health problems that transcend national borders have not generally perceived national or international criminal law as primary means for preventing, protecting against, or responding to such problems. Leading historical and contemporary examples of international law on public health do not include criminal law in the strategies pursued. Major controversies in global health – such as lack of progress on achieving the Millennium Development Goals, declining funding for HIV/AIDS, health worker migration, or conducting and publishing research on dangerous pathogens – do not raise criminal law issues. Global health interests in improving health systems and social 58 World Health Organization, Implementation of the International Health Regulations (2005): Report of the Review Committee on the Functioning of the International Health Regulations (2005) in relation to Pandemic (H1N1) 2009, WHO Doc. No. A64/10, 5 May 2011, p. 128.

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determinants of health likewise do not draw on criminal law. Similarly, standard mechanisms of international cooperation on criminal law  – extradition treaties and MLATs – do not appear to have much importance for public health. Where criminalization features in international legal regimes relevant to global health, public health officials have been sceptical, as happened with respect to international control of narcotic drugs, or have not been leading proponents of criminalization, as occurred in many contexts, including torture, counter-terrorism, weapons of mass destruction, child labour, trafficking in women and children, migrants, and firearms, and IHL. These areas of overlap between public health and international criminal law belong within the scope of global health governance, but the overlap does not mean that criminal law is normatively or practically a priority in such governance. Public health principles support the legitimacy of the objectives of criminalization in most of these areas, but this legitimacy has many sources – political ideology, national security considerations, law and order concerns, economic interests, and human rights ideas. In essence, public health has largely played a marginal role in the formation and utilization of international criminal law addressing problems of global health concern. Two recent developments cut against this grain because they involve global health concerns driving the actual and proposed use of criminal law as an instrument of global governance. The first development involves the FCTC protocol on illicit trade in tobacco products, which represents the first time the leading intergovernmental actor in global health – WHO – has adopted international criminalization as a mechanism for improving global health. The second development reflects strategies to use criminal law in addressing health threats presented by falsified medical products. These strategies include INTERPOL ­activities, adoption of a new treaty by the Council of Europe, suggestions for more effective use of an existing treaty criminalizing transnational activities of organized criminal groups, and a proposal for a WHO treaty that would make trade in falsified medical products a crime of international concern. Even though global health interests play leading roles in these developments, the global health governance embrace of criminalization comes after these two problems have achieved dangerous global proportions. This observation connects with the reality that other areas of overlap between public health and international criminal law involve issues characterized by governance failures (for example, endemic torture in the international system; atrocities in armed conflicts; human trafficking). International criminalization has largely proved an inadequate

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response to these failures, which raises questions about the prospects of increasing criminalization in global health governance. In that regard, criminalization is sub-optimal as a global health governance strategy from the perspective of effectiveness. The public health emphasis on prevention of, and protection against, threats to health security tends to take global health away from ex post application of criminal sanctions and towards addressing underlying causes of such threats, such as social determinants of health. This tendency reveals in global health a search for a broader, more elusive type of security and justice than application of criminal law against individuals can achieve for population health.

­Index

Acmanne v. Belgium, 166 acquired immunodeficiency syndrome (AIDS), see HIV/AIDS admissibility of scientific evidence, 201–2 Ageton, S. S., 179–80 Akers, R. L., 179, 180 Akers, Timothy A., 15, 177 alcohol consumption, 2 Allan, E., 176–77, 189 Andrews, D. A., 183–84 animal cruelty, 113–15 Animal Welfare Act 2006, 115 Anslinger, Harry, 55n.56 armed conflict, 248–50 Ashworth, Andrew, 4–5, 121, 150–51 Association for Moral and Social Hygiene (AMSH), 135–36 atmospheric pollution, 9 Ayres, I., 222–23, 225 Baldwin, Peter, 137 Battin, M. P., 143 Bayles, M. D., 128–29 Beaufort, Inez de, 39 Bennett, William, 50 Benton, David and Derek (prosecution for animal cruelty), 114–15 Berlin, Isaiah, 96–97 biobanks, 38–40 biological weapons, 244, 246, 247–48 Biological Weapons Convention (BWC), 244 Black, Julia, 25 blood-borne diseases, 9–10 Bonta, J., 183–84 Braithwaite, J., 222–23, 225 Brame, R., 181 Brazier, M., 165 British Medical Association, 160 British Medical Journal, 160

Brittany T case (In the Matter of Brittany T ), 112 Brownsword, Roger, 10–11 Burgess, R. L., 179 Caldicott, Dame Fiona, 153–54, 155 Caldicott principles, 153–54, 159 Califano, Joseph, 50 calorie counts on restaurant menus, 30 Cameron, David, 229 Canada disease transmission, 127, 140–41 HIV/AIDS, 209–11 Capehorn, Matt, 108n.40 Caulkins, Jonathan P., 45n.11 Chalmers, James, 13, 160–61 chemical weapons, 243–­44 Chemical Weapons Convention, 243–44 child labour, 243 child obesity as child protection issue, 109–13 criminal law, 12–13, 120–23 health risks, 104–6 prevalence, 102–4 prosecution of parents, 113–20 state intervention, 12–13, 106–7, 120–23 children, trafficking in, 247 Children Act 1989, 109n.43, 109n.44, 109–10 Children and Young Persons Act 1933, 115–18 cholera, 214–15 Clean Air Acts 1956, and 1968, 9 Coase, Ronald, 220–21 Coggon, John, 12 confidentiality of data, 152–54, 155 contagious disease, see disease transmission Contagious Diseases Acts, 133–37 corporate social responsibility, 226

261

262

­Inde

counterfeit medical products, 254–58, 259 crime drugs, connection with, 48–58 drugs, criminalisation of, 42–48 drugs, decriminalisation of, 58–61 of international concern, 245–48, 255–58 New York City, 53–58 and public health, 11 criminal justice, and violence, 176–78, 189–90 criminal law aims, 4–5 alternatives, 90–91, 122–23 armed conflict, 248–50 child obesity, 12–13, 120–23 disease surveillance, 14, 151–57, 169–70 disease transmission, 13, 124–28, 131–38 drugs, criminalisation of, 42–48, 58–61 drugs as public health problem, 67–71 environmental regulation, 215–16, 227–36 falsified medical products, 254–58, 259 forensic epidemiology, 192–93, 195–96 and global health governance, 16, 237–38, 258–60 global strategies, 250–58, 259–60 goals, 197–99 harm reduction, conflict with, 11–12, 62–65 harm reduction programme evaluation, 71–78 HIV/AIDS, 9–10, 146–47, 208–9, 240–41 infectious disease, 66–67 international harmonisation, 242–44 international law enforcement and cooperation, 244–48 international law principles, 239–41 language, 200–1 legitimacy of public health use, 10–11, 19–22, 40–41 liberal perspective, 20–24, 40–41 and philosophy, 81–84 public health collaboration, 14, 192–93, 206–11, 212 as public health measure, 4, 8–10, 16–18, 145–51, 169–70, 240–41, 258–60 public health, relationship to, 1–4, 7–10

regulatory environment, 24–29, 34 regulatory test case scenarios, 29–34 scientific evidence standards, 201–6 screening for diseases, 14, 157–64 sexually transmitted infections (STIs), 13, 124–28, 131–38 testing for disease, 14, 157–64, 169–70 tobacco, illicit trade in, 250–54, 259 tobacco, regulation of, 12, 79–81, 89–94, 100–1 treatment for disease, 14, 164–70 criminal violence criminogenics, 182–85 drugs, connection with, 48–58 drugs, decriminalisation of, 58–61 New York City, 53–58 official violence, 181–82, 186–87 and public health, 172–76, 188–91 theoretical explanations, 178–82 victims, 185–86 violence prevention, 186–91 see also epidemiological criminology criminogenics, 182–85 criminology, 176–78, 188, see also epidemiological criminology CSI: Crime Scene Investigation, 192–93 Czarnezki, J. S., 235 Dahlberg, L. L., 172 D’Amato, Alfonse, 50 Danishevskiy, Kirill, 92–94, 97–98, 100 data confidentiality, 152–54 Data Protection Act 1998, 153 Daubert v. Merrell Dow Pharmaceuticals, 202–3 Dean, C. W., 181 decisional privacy, 96–98 decriminalisation of drugs, 43–44, 47–48, 58–61, 64–65, 76 Deepwater Horizon oil spill, 226 Defence of the Realm Act 1914, 135–36 detention for treatment, 164–70 Devlin, Baron Patrick, 129 Dica, Mohammed, 132–33 DiIulio, John, 50 disease screening criminal law, 14, 145–51, 157–64 global approach, 142–45 disease surveillance criminal law, 14, 145–51, 169–70 forensic epidemiology, 211–12 global approach, 142–45, 258 pandemics, 146

­Inde

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disease testing criminal law, 14, 145–51, 157–64, 169–70 global approach, 142–45 disease transmission contact tracing, ­163 Contagious Diseases Acts, 133–37 criminal law, 13, 124–28, 131–38 environmental regulation, 214–15 global nature, 142–45 harm, characterisation of, 131 harm principle, formulations of, 128–30 Law Commission proposals, 137–38 Offences Against the Person Act 1861, 131–33 pandemics, 143n.10 reckless harm, offence of, 138–41 disease treatment criminal law, 14, 145–51, 164–70 global approach, 142–45 DK case (In re DK ), 111–12 Downes case (medical neglect), 119 Downs v. Secretary of State for Environment, Food and Rural Affairs, 218n.33 drugs consumption facilities, 73–74, 75–76 crime, connection with, 48–58 criminalisation, 42–48 decriminalisation, 58–61 harm reduction programme evaluation, 71–78 international trade, 240 New York City, 43, 53–58 overdoses, 73–74 as public health problem, 11–12, 44–48, 58–61, 67–71 treatment for drug use, 45–48 Duff, Antony, 81–83, 95n.59, see also Duff, R. A. Duff, R. A., 128–29, 130–31n.41, see also Duff, Antony Duffee, D. E., 176–77, 189

environmental regulation command-and-control regulation, 218–25, 232–34 consumption, regulation of, 227–32, 234–36 and criminal law, 215–16, 232–36 ecosystems, value of, 216–17 inequalities, social and health, 217–18 mechanisms, 15–16, 218–19, 220–21, 227 nudge theory, 228–32 property rights, 220–21 and public health, 214–15 re-evaluation, 225–28, 234–36 risk-based regulation, 223–25 epidemiological criminology criminogenics, 182–85 and health behaviours, 171–­72 public health and criminal violence, 172–76, 188–91 structure, 176–78 theoretical base, 178–82 use of, 15 victims, 185–86 violence prevention, 186–91 Epstein, Richard, 90n.42 ethics, 6, 84, 85–88, see also morality ethnicity and screening, 158 European Centre for Disease Prevention and Control (ECDC), 144 European Convention on Human Rights (ECHR) detention for treatment, 166–67 disease control, 147 privacy, right to, 96, 153 public health, 149 European Union (EU), 144–45, 218–19 Every Child Matters: Change for Children programme, 121 evidence, 204–5 extradition treaties, 241–42, 244–45, 251–52 Eyam village (Derbyshire), 142

Elliott, D. S., 179–80 Elliott, Tracey, 12–13 England disease transmission, 127–28 obesity as child protection issue, 109–10 public health legislation, 127 see also United Kingdom (UK) English Sanitary Act 1388, 9 Enhorn v. Sweden, 166–67 Environmental Protection Act 1990, 215, 221–23

Faden, R. R., 158–58 falsified medical products, 254–58, 259 Farrington, D. P., 180–81 Faupel, Charles E., 49n.26, 50 Feinberg, Joel, 23n.8, 128–30 Fidler, David, 16 Finkelstein, C., 129–30 fluoride in drinking water, 33–34 foetal alcohol syndrome, 183 Foodborne Disease Active Surveillance Network (FoodNet), 211

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­Inde

forensic epidemiology applications, 195–96 biological weapons, 246 criminal justice and public health collaboration, 14, 192–93, 206–11, 212 criminal justice and public health goals, 197–99 criminal justice and public health language, 200–1 definition, 194–95 disease surveillance, 211–12 standards for evidence to be used in court, 201–6 Framework Convention on Tobacco Control (FCTC), 91, 250–54, 259 France, A., 181 Frank, Johann Peter, 1 Freedom Organisation for the Right to Enjoy Smoking Tobacco (Forest), 98 Freeman, M. D., 194–95, 200 Frye v. United States, 201 Gardner, J., 130 Gaud, Unesh (R v. Gaud), 125n.2, 163 GC case (In the Interest of GC), 111–12n.62 General Medical Council (GMC), 160 Geuss, Raymond, 89 Gibbons, Don, 176 Giddens, A., 179 global health ­governance armed conflict, 248–50 crimes of international concern, 245–48, 255–58 and criminal law, 16, 237–38, 258–60 criminal law, harmonisation of, 242–44 extradition treaties, 241–42, 244–45, 251–52 falsified medical products, 254–58, 259 global strategies, 250–58, 259–60 international law enforcement and cooperation, 244–48 international law, principles of, 239–41 mutual legal assistance treaties (MLATs), 242, 244–45, 251–52 tobacco, illicit trade in, 250–54, 259 Goldstein, Paul, 49 Goodin, Robert E., 94–95 Goodman, R., 194 Gostin, Lawrence O., 19, 87–88, 144, 152, 157, 158 Gottfredson, M. R., 181 Gray, John, 89

H1N1 influenza pandemic, 258 Hammond, W. R., 173–74 harm principle alternative formulations, 128–30 child obesity, 121–23 Contagious Diseases Acts, 134–35 harm, characterisation of, 131 harm, criminalisation of, 129–30, 131–38 harm prevention, 129–30 liberal perspective, 22 reckless harm, 138–41 harm reduction characterisation, 63–65 conflict with criminal law, 11–12, 62–65 drugs as public health problem, 11–12, 44–48, 67–71 infectious disease, 66–67 programme evaluation, 71–78 Harris, J., 165 Hawken, Angela, 45n.11 Health and Social Care Act 2008, 147 Health Protection Agency (HPA), 154–55 Health Protection (Notification) Regulations 2010, 154 health screening, see screening for disease Hepatitis C, 9–10 Heyman, Gene M., 47n.21 Hildebrandt, Mireille, 27 Hirschi, T., 181 HIV/AIDS confidentiality of data, 155 criminal law, 9–10, 146–47, 208–9, 240–41 detention for treatment, 166–67, 168 harm, characterisation of, 131 harm reduction conceptualisation, 66–67 harm reduction programme evaluation, 71–78 Offences Against the Person Act 1861, 131–33 public health goals, 199–200 screening, 159–­62 spread, 142, 143 transmission, 127–28, 164 US approach, 206, 208–9, 210 see also sexually transmitted infections (STIs) Homel, R., 181 Horowitz, Alan M., 49n.26, 50 House of Lords reports, 161–62, 230–31 Huizinga, D., 179–80

­Inde human immunodeficiency virus (HIV), see HIV/AIDS Human Rights Act 1998, 147, 149, 153 Human Tissue Act 2004, 160–61 human trafficking, 247 Husak, Douglas N., 11, 231–32n.94 hygiene, 9 infectious disease, 66–67 infrastructure, 34–40 International Harm Reduction Association, 67, 68 International Health Regulations, 143, 212–13, 240, 258 international humanitarian law (IHL), 248–50 International Labour Organization, 243 international law armed conflict, 248–50 enhanced enforcement and cooperation, 244–48 extradition treaties, 241–42, 244–45, 251–52 falsified medical products, 254–58, 259 and global health governance, 16, 237–38, 258–60 global strategies, 250–58, 259–60 harmonisation, 242–44 mutual legal assistance treaties (MLATs), 242, 244–45, 251–52 principles, 239–41 and public health, 240–41, 258–60 tobacco, illicit trade in, 250–54, 259 international tribunals, 248 Internet, use of, 212 INTERPOL, 244, 254–55 Ireland, C. E., 172 Jackson, Emily, 79–80, 88, 91–92 Jennings, Bruce, 85–87 Jessor, R. and S. L., 179 Johnson, L., 142 Joseph Rowntree Foundation, 76 jurisdiction in international law, 239–41, 252–54 Kass, N. E., 158 Keith, Lord, 116 Kleiman, Mark A. R., 45n.11 Krider, J. E., 174, 189–90 Krug, E. G., 172 Ladies’ National Association, 133, 135 Latin, H. A., 228 Law Commission proposals regarding disease transmission, 137–38

265 Lazzarini, Zita, 14, 152–52 Lee, Robert G., 15–­16 legitimacy liberal view of criminal law use, 20–24 regulatory environment, 24–29, 34 use of criminal law for public health, 10–11, 19–22, 40–41 Lessig, Lawrence, 26 liberal perspective criminal law, 20–24, 40–41 drug use as public health problem, 44–48 harm principle, 22 regulatory environment, 24–29, 34, 40–41 test case scenarios, 29–34 loading conduct (financial incentives), 31–32 LT case (In the Interest of LT, a Minor Child), 111 Martinez-Regino, Anamarie, 111–12n.62 McCreaddie, Connor, 109–10 McHale, Jean V., 14 McKee, Martin, 92–94, 97–98, 100 medical aid, 116 medical neglect, 119–20 medical products, 254–58, 259 MEDICRIME Convention (Convention on the Counterfeiting of Medical Products and Similar Crimes Involving Threats to Public Health), 255–57 Mendelsohn, B., 185 Mercy, J. A., 173–74 microbial forensics, 196 Mill, John Stuart, 121, 128–30, 134, 148 Moffitt, T. E., 181 Monaghan, S., 151 morality, 8, 94–101, see also ethics Moskalewicz, J., 64 Mustill, Lord, 23–24 mutual legal assistance treaties (MLATs), 242, 244–45, 251–52 Mykhalovskiy, E., 210 National AIDS Trust, 162 needle and syringe exchanges, 62, 66, 71–73 negative loading, 31–32 Neilans, Alison, 135 New York City, 43, 53–58 No vaccine no cure: HIV and AIDS in the United Kingdom (House of Lords), 161–62 Nolan, James L., 46n.13

266

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nudge theory, 32–33, 228–32 Nuffield Council on Bioethics, 22, 35, 148–49, 155, 167 Nussbaum, Martha C., 24n.10, 40n.39 obesity calorie counts on restaurant menus, 30 as child protection issue, 109–13 criminal law, 12–13, 120–23 prevalence, 102–4 health risks, 104–6 parents, prosecution of, 113–20 state intervention, 12–13, 106–7, 120–23 Offences Against the Person Act 1861, 131–­33 organised crime, 246 Oslo Declaration on HIV Criminalisation, 141 overdoses, 73–74 pandemics, see disease surveillance; disease transmission parents prosecution for child’s obesity, 113–20 prosecution for medical neglect, 116, 119–20 Parton, N., 121 philosophy and criminal law, 81–84 political theory, role of, 88–89 private vs public in tobacco control, 94–101 and public health, 81, 84–88 physical privacy, 98–99 Piquero, A. R., 181 political theory criminal law, validity of, 83–84 philosophy, recognition in, 88–89 private vs public in tobacco control, 94–101 public health, 87–88 positive loading, 31–32 Potter, Roberto H., 15, 174, 177, 188, 189–90 Powers, M., 158 precautionary principle, 148n.42, 218n.33 Presidential Commission for the Study of Bioethical Issues, 34–35 privacy, right to, 152–54 private vs public in public health, 94–101 Producer Responsibility Obligations (Packaging Waste) Regulations 2007, 218–19

ProMED-mail, 212 Protection of Animals Act 1911, 114–15 public health aims, 5–6 biobanks, 38–40 and crime, 11 crimes of international concern, 245–48, 255–58 criminal law, 4, 8–10, 16–18, 145–51, 169–70, 240–41, 258–60 criminal law, collaboration with, 14, 192–93, 206–11, 212 criminal law, legitimacy of, 10–11, 19–22, 40–41 criminal law, relationship to, 1–4, 7–10 and criminal violence, 172–76, 188–91 definitions, 5–6, 84–85, 124n.1 drugs as public health problem, 11–12, 44–48, 58–61, 67–71 and environmental regulation, 214–15 ethics, 84, 85–88 forensic epidemiology, 195–96 global strategies, 250–58, 259–60 goals, 197–99 harm reduction programme evaluation, 71–78 infectious disease, 66–67 international cooperation mechanisms, 241–42 international criminal law, 240–41, 258–60 language, 200–1 measures, 6 and philosophy, 81, 84–­88 private vs public, 94–101 regulatory environment, 24–29, 34 regulatory test case scenarios, 29–34 stewardship, 34–40 violence as public health problem, 48–58, 172–76, 188–91 violence resulting from drug use, 48–58 see also global health governance Public Health Acts, 9, 145–47, 215 Public Health (Control of Disease) Act 1984, 126n.10, 146–47 Public Health England, 154–55 Public Health (Infectious Diseases) Regulations 1988, 126n.10, 146–47 R v. Brown, 23–24 R v. Clarence, 132–33 R v. Dica, 132–33, 138–39 R v. Gaud, 125n.2, 163–63

­Inde R v. Ireland, 132–33, 138 reckless harm, 138–41 regulation alternatives to criminal law, 90–91, 122–23 legitimacy, 40–41 normative and non-normative, 24–29, 34 test case scenarios, 29–34 in the UK, 145–47 Regulatory and Enforcement Sanctions Act 2008, 223 relational privacy, 99–100 restaurant menus, 30 Rosky, J. W., 188 RSPCA v. Gray, 115 Rush, G. E., 172 sadomasochistic practices, 23–24 sanitation, 9, 146 SARS (severe acute respiratory syndrome), 142, 167, 212 Schneider, H. J., 185–86 Scotland, 126–27, 132n.51 screening for disease criminal law, 14, 145–51, 157–64 global approach, 142–45 opt-out, 33–34 searches, administrative and criminal, 202–4 self-incrimination, 205–6 Senior case (medical neglect), 119 sexually transmitted infections (STIs) Contagious Diseases Acts, 133–37 and criminal law, 13, 124–28, 131–38 detention for treatment, 168 harm, characterisation of, 131 harm principle, formulations of, 128–30 Law Commission proposals, 137–38 Offences Against the Person Act 1861, 131–33 reckless harm, offence of, 138–41 see also HIV/AIDS Shakespeare, William, 219 Shute, S., 130 Sidibé, Michael, ­63 Simon, Herbert A., 229 Skrabanek, Petr, 90n.42 Smith, J. C., 115n.80 smoking bans, 22, 31 Snow, John, 214–15 sovereignty in international law, 239–41, 252–54

267 Spencer, J. R., 138, 139 Stallworthy, Mark, 15–16 stewardship, 34–40 Stokes, Elen, 80 Stone, Lesley, 87–88 Sunstein, Cass R., 228–32 surveillance of disease criminal law, 14, 145–51, 169–70 forensic epidemiology, 211–12 global approach, 142–45, 258 Sustainable Development Commission, 227 Sutherland, Edwin, 176, 179 terrorism, 243 testing for disease criminal law, 14, 145–51, 157–64, 169–70 global approach, 142–45 Thaler, Richard, 228–32 tobacco criminal regulation, 12, 79–81, 89–94, 100–1 illicit trade, 250–54, 259 private vs public, 94–101 smoking bans, 22, 31 torture, 243, 245, 247 transparency, 22–23, 33–34 Travis, L., 176 treatment for disease criminal law, 14, 145–51, 164–70 global approach, 142–45 treatment for drug use, 45–48 Turner case (medical neglect), 119–20 UK Biobank, 38 UN UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 69 UN Convention against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, 243, 245, 247 UN Convention against Transnational Organized Crime (UNCTOC), 246, 247, 251–52, 255–57 UN Global Commission on HIV and the Law, Risk, Rights and Health, 162 UN International Convention for the Suppression of Terrorist Bombings, 243

268

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UN (cont.) UN Office on Drugs and Crime (UNODC), 255–56 UNAIDS (Joint United Nations Programme on HIV/AIDS), 140, 159, 161 United Kingdom (UK) criminal law as public health tool, 145–47 detention for treatment, 168–69 disease transmission, 127–28 environmental regulation, 218–­25 HIV/AIDS, 209–10 nudge theory, use of, 228–32 obesity as child protection issue, 109–10 public health, 127, 197 screening/testing, 158, 161–62 UK Biobank, 38 United Nations, see UN United States (US) criminal justice and public health collaboration, 206 criminology, 188 Deepwater Horizon oil spill, 226 disease surveillance, 211 Drug Enforcement Agency, 50 HIV/AIDS, 206, 208–9, 210 obesity as child protection issue, 110–13 public health, 197, 198 scientific evidence standards, 201–6 screening, 158 violent crime, 53–58, 174–75 venereal disease, 133–37, see also sexually transmitted infections (STIs) Venice, 142 Viner, R. M., 108, 112–13 violence criminogenics, 182–85 definition, 172

drugs, connection with, 48–58 drugs, decriminalisation of, 58–61 New York City, 53–58 official violence, 181–82, 186–87 prevention, 186–91 as public health problem, 48–58 public health, relationship to, 172–76, 188–91 theoretical explanations, 178–82 victims, 185–86 see also epidemiological criminology Vogel, D., 226n.70 Walker, Tom, 11–12 Walters, John, 50 war, 135–36, 248–50 water, fluoride in, 33–34 Weaver, Greg S., 49n.26, 50 Welsh, B. C., 180–81 Wertheimer, A., 129n.31 Wilson, James Q., 50 Winslow, Charles-Edward A., 5 Wolff, Jonathan, 89 women, trafficking in, 247 World Health Organization (WHO) disease transmission, 143 falsified medical products, 255–56, 257 Framework Convention on Tobacco Control (FCTC), 91, 250–54, 259 harm reduction, 68 International Health Regulations, 143, 212–13, 240, 258 World War I, 135–­36 World War II, 136 Worst Forms of Child Labour Convention, 243 Zimring, Frank, 53–58