RESULTS AND CAUTIONARY TALES

The volume began by asking what the limits of criminal law are. Having examined the core principles of the criminal law of England and Wales and of Germany, as well as seven areas where the criminal law meets and interacts with other areas of law, what then are its limits?

This concluding chapter will turn to reflect on what insights the volume offers about the criminal law generally, and in particular in both the English and German legal systems. It will do so with more explicit references to how the criminal law affects and is affected by the culture of legal actors and wider societal values in each legal system. After some brief preliminary observations on the meaning of criminal law enforcement, this conclusion will first focus on the higher-order features of criminal law itself. As the preceding chapters have shown, the criminal laws of the two jurisdictions differ in many ways, but they also share many similarities. While the law is a product partly of a country's legal culture and its history, the law in both jurisdictions, despite many important differences, aims at overall largely similar objectives and, in order to reach these objectives, has to overcome similar hurdles and accommodate similar concerns. Those similarities might be thought of as higher-order features of the criminal law, or of law more generally, and clarity about them allows us to contextualise the findings. In particular, it assists with finding and analysing functional equivalents, seeing whether they differ in substance or only in form, and, combined with good comparative law techniques, helps prevent projecting one system's reasoning or rules onto another’s, as well as the discrepancies of language and cultural predispositions of the individual observer. After having examined those general features, this chapter will then discuss those key features of the two domestic legal systems explored in this volume that, in view of the editors, have particular relevance for explaining the sometimes stark differences. Consequently, these concluding reflections do not focus on the details of how each law answers specific questions, but their aim is to contextualise the more detailed findings of the paired chapters and conclusions. It is hoped that the reader will finish the book with a wealth of material, and a sharpened sense of what criminal law is and what limits it.

This book represents the work of a community of criminal lawyers connected to the University of Oxford and the Max Planck Institute for Foreign and International Criminal Law in Freiburg, and there are many people who deserve thanks for it coming to life on the page. While the editors were lucky to work with such talented and diligent authors, they were particularly lucky to have the sage guidance of Ulrich Sieber, Director at the Max Planck Institute. From the English side, Lucia Zedner, Rebecca Williams and Grant Lamond also helped in numerous ways, from logistics to detailed discussions of the finer points making a book about criminal law. The funding for the two workshops came from the Research Support Fund of the Faculty of Law, University of Oxford, and from the Max Planck Institute, to whom all participants in the project are very grateful. The project benefitted greatly from the assistance of Anna Riddell-Roberts in preparing the texts, and in bringing the book from ideas through to the hands of readers, the wonderful team at Intersentia, with Ann-Christin Maak-Scherpe and Rebecca Moffat deserving particular thanks.

What characterises criminal conduct? Few questions have more obvious relevance when inquiring into the limits of criminal law, yet answers are far from evident. The introductory pair of chapters of this volume already briefly addressed limits on criminalisation in both jurisdictions and indicated that, at least at the level of constitutional law, Parliament enjoys broad discretion. The preceding pair of chapters further investigates this topic by looking at what limits to substantive criminal law might be implicit in how the criminal law operates, even if these limits are not formulated as such by constitutional law. To this end, the two chapters look at the relationship between criminal law and regulatory law, the latter being an area of law where legislative recourse to the criminal law is, for various reasons, often controversial. Regulation is here understood as sets of norms that the state uses to organise particular sectors of social life, providing conditions which individuals or private legal entities need to meet in order to operate within that particular sphere. In addition to a set of norms governing the behaviour of the private operators, regulatory regimes will normally include regulatory agencies which organise operations though measures such as licences, prohibitions and supervisory controls. To enforce regulatory norms, the state will often make use of sanctions. Two questions then arise: first, whether such sanctions are or should be part of the criminal law; and second, whether regulation is or should, alternatively or complementarily, be enforced through some kind of non-criminal sanctions, that is a sanctions regime outside the criminal law the function and principles of which might (partially) differ from the criminal law. Both questions presuppose criteria to distinguish criminal from non-criminal wrongdoing and thereby inquire into the very core of criminal law's normative identity.

WHAT THE LIMITS ARE LIMITING

In trying to understand the normative limits applied within criminal law and regulation, we face a problem. At first glance the two jurisdictions are somewhat unlikely comparators for the question at hand, for only German law formally recognises a distinct category of non-criminal regulatory offences.

This chapter explores the core concepts and principles of German criminal law, in particular the applicable constitutional law framework, the general substantive concepts of the Criminal Code and the main features of criminal procedure. Legislation, constitutional jurisprudence and doctrine aspire to form a coherent structure that runs from constitutional to substantive to procedural law and that guides decision-making at all levels of the criminal process.

BACKGROUND

German criminal law is primarily founded on two codifications: the Criminal Code (Strafgesetzbuch) and the Code of Criminal Procedure (Strafprozessordnung). The Criminal Code consists of a General Part that provides for the general principles of criminal liability and sentencing, and a Special Part that contains the definition of offences. Criminal offences are also contained in numerous special laws outside the Criminal Code, where criminal provisions are often added to underpin a broader regulatory legal framework. Despite the existence of such special laws, German criminal law continues to be dominated by these two codifications, which since the nineteenth century have become the bedrock of the legislative endeavour to ensure both legal certainty and systematic coherence of the law. Going well beyond a mere compilation, this continuing, constantly updated codification of substantive and procedural law allows the harmonious integration of new social phenomena and legislation into the existing body of laws. German law's strong attachment to the idea of codification is intended to prevent the clashes between different areas of law which might result from a piecemeal approach. In addition, codification is also characterised by the development of an abstract (that is, not case-specific) set of rules which allows the legal system to flexibly respond to social developments while at the same time avoiding piecemeal legislation.

The aforementioned codifications demonstrate German criminal law's heavy reliance on academic doctrine. The rise of this doctrine can be observed through the development of modern codifications in the nineteenth century, beginning with the Criminal Law Statute of the Kingdom of Bavaria in 1813, which was authored by renowned jurist Anselm von Feuerbach and is considered the starting point for a liberal and reason-based criminal law. Inspired by Enlightenment philosophy, notably by the thinking of Immanuel Kant, criminal law doctrine has since then shaped German criminal law in an endeavour to ensure the rational coherence of the law and to keep infringements of pure morals (as opposed to infringements of rights) out of the sphere of state punishment.

In many areas of life, the state enforces the law through sanctions imposed by administrative agencies without prior judicial involvement. Such sanctions can take many forms, most notably fines, but also for example the confiscation of assets, restrictions on or the complete withdrawal of professional licences, debarment from public tenders, or even publically naming and shaming people or companies by blacklisting them. Administrative sanctions can apply to very broad sectors of public life, as seen in the example of the enforcement of road traffic rules, but also to narrower, more specialised areas, in particular the enforcement of economic regulation by supervisory authorities like financial market regulators or consumer protection supervisors. While administrative sanctions can in many cases overlap with the criminal law, the present pair of chapters has demonstrated that they do in fact constitute a distinct category of enforcement in that they differ in fundamental ways from the imposition of sanctions by criminal courts following a trial. Given these differences, administrative sanctions, by implication, provide important insights into the nature of the criminal process. In addition, administrative sanctions highlight questions about the legitimacy of sanctions being imposed by the executive, especially how far the state may have recourse to administrative sanctions as opposed to criminal enforcement.

WHAT THE LIMITS ARE LIMITING

As the present pair of chapters shows, a major difference between the two jurisdictions appears at the level of the substantive law, in that only Germany recognises administrative sanctions as an independent category of sanctions and keeps them strictly outside the criminal law. In contrast to the situation under English law, but very much in line with the general approach in German law of focusing primarily on substance and only to a lesser extent on procedure, the categorisation is thus dependent on the formal classification of an offence, not on who imposes the sanctions. On closer inspection, the substantive dichotomy in German law reflects the German understanding that criminal and administrative sanctions serve categorically different purposes.

Unlike English law, German law differentiates between criminal offences and regulatory offences, and allows for the imposition of sanctions by administrative agencies only in the case of regulatory offences. Sieber demonstrates that this non-criminal category of offences does not preclude the imposition of sometimes very heavy fines, especially for serious economic wrongdoing.

‘Intelligence’, short for ‘intelligence operations’ or similar, usually describes covert forms of state action, in particular, though not exclusively, the collection of information through covert means. While such activities are primarily the domain of intelligence services, covert measures might also be performed by other state bodies, especially police authorities. As explained by Arslan, the distinction between criminal law and intelligence thus does not always correlate with the institutional distinction between criminal justice and police on the one hand and intelligence services on the other hand. At the core of the distinction are differences in modes of operation: whereas interaction between citizens and the state usually happens openly and transparently and thus allows for review in a court of law, intelligence is characterised by a culture of secrecy and usually operates outside the institutional sphere of police, prosecutors and, more generally, the courts. However, as shown in this volume, especially by the chapters on terrorism, the role of covert investigations in the enforcement of criminal law is today increasing in scope and relevance: both the police and intelligence services are using covert investigative methods in their efforts to prevent and respond to crime. The preceding pair of chapters offers a fascinating perspective into how in many different ways the two legal orders define the role of intelligence services as regards criminal justice. The comparative perspective also exemplifies how history impacts on today's legal frameworks in that German law continues to be clearly influenced by the country's experiences with immensely powerful secret services under the Third Reich and in communist East Germany. By contrast, the English experience is more nuanced, having experienced smaller-scale domestic terrorism for decades but not the response of the pervasive use of state apparatus of surveillance, let alone direct control.

While covert measures by the state are today widely recognised as a necessity for addressing serious crime, the hallmarks of such activities do in many ways radically depart from the standards of the criminal law and today in both England and Germany urgently raise questions of how to define the boundaries between intelligence and criminal law enforcement.

WHAT THE LIMITS ARE LIMITING

The use of intelligence points to several key normative limits of criminal justice.

Terrorism offences ‘sit at the very limits’: the limits here mean not only a physical, liminal space, but also on the edge of the conceptual brakes or constraints the criminal law can apply. There are a number of key limitations, but the overarching question in the two chapters is where limits come from: are counter-terrorism purposes limited by rules of criminal law, constitutional law or something else, and how far can the fear of terrorism take us from our established structures of norms. One trend is away from the established legal categories, and their known abilities to limit the reach of the criminal law, and into a brave new world. However, what lies ‘beyond the limits of criminal liability’ differs by country.

In both England and Germany, counter-terrorism is not confined to the criminal law, but extends to other instruments, notably administrative preventive measures, immigration law and intelligence law. A large part of legal debates on terrorism and the law circles around two separate questions: on the one hand, whether those non-criminal measures effectively circumvent criminal law safeguards and whether the criminal law should therefore play a greater role; on the other hand, whether the adaptation of the criminal law to terrorist threats dilutes criminal law's safeguards and whether non-criminal measures should instead be given greater prominence in order to protect the integrity of the criminal law. What characterises both questions is the observation that the borders between the criminal law and other areas of law are increasingly blurred and that clear criteria for maintaining those borders and the respective safeguards they embody are often not clearly discernible.

In that light, probably the most significant difference between the two jurisdictions is the long-standing presence, in Germany, and the absence, in England and Wales, of a body of law known as police law. Police law has long historical roots and creates an important distinction from criminal law. Police law is proactive, and responds to dangerousness, rather than to past wrongdoing as the criminal law does. As further explained by Arslan and Brodowski in this volume, it is a category given meaning by its exclusively forward-looking preventive nature, framed and specified by an extensive jurisprudence of administrative courts and the Federal Constitutional Court.

Our opening two chapters capture the value criminal lawyers in each jurisdiction place on limits within the criminal law. The content of those limits is what a national lawyer would recognise and the terminology, though made accessible to those from other legal systems, conveys how the issues are framed by and for those legal actors. The core principles discussed in these two chapters will be picked up throughout the rest of this volume. They are essential reading for readers of this volume just as much as they are essential knowledge for legal actors within the criminal justice system of each jurisdiction. Each legal system structures and values those principles differently and this brief comparative conclusion cannot explore them all. This comparative conclusion will draw out some of the key limits and explore what characteristics those limits suggest for each system. It will do so by first considering what is being limited and two categories are useful here: the criminal law's normative limits – how its principled constraints are placed, or chafed against, within the criminal law, or put another way, that which demarcates criminal principles from some other area of law; and then, its performative limits – the practical constraints on the effectiveness of the law, and the practical reasons why the limits themselves might not contain the criminal law. The final section of this conclusion will look at the nature of the limits teased out in the two chapters on general principles: how they are perceived, how they shape the law and how they interrelate to each other.

WHAT THE CORE PRINCIPLES ARE LIMITING

The normative limits of criminal law explored in this pair of chapters have a great deal in common. Each aim would be recognised by lawyers in each system, though the form of those limits, and how strictly that form must be adhered to, vary significantly. We might usefully distinguish between substantive law, criminal procedure and the sanctions the systems impose.

Both chapters give numerous examples of substantive principles, like legal certainty, the importance of moral stigma through to agency and culpability, and the role of doctrinal concepts of fair attribution in giving shape to legislative and judicial development of the law. These principles appear to be defined in similar ways, often virtually identical ways, and are used to do the same work in broadly the same way.