In thinking about women in law schools in the 1970s and 1980s, I want to begin with the impact on education, including higher education, of the significant political, economic and cultural shifts in the 1950s and 1960s. I am five years younger than Brenda Hale, and I come from a different family background. But both Brenda and I were at grammar schools in England in the early 1960s. Opportunities for girls were embedded in the education system in subtle and less subtle ways. The Robbins Report in 1963 drew attention to the way girls were siphoned into training as teachers and nurses, and the small number opting for science degrees. It is extraordinary to discover that only just over 2 per cent of girls and 5.6 per cent of boys went on to university in 1962. Some boys had alternative career tracks to the legal and accountancy professions via articled clerkships (often obtained through family connections). Twice as many girls went on to teacher training, but, again, the overall numbers were small. Because secondary schools were selective – and I know from my later research into women law professors that many law students came from private schools – Brenda and I, from the age of eleven, were already mixing with a relatively small range of peers.

In this final section we explore the relationship between behaviour which is regarded as violent by the formal processes of the criminal justice system (that is, police investigation, prosecution and trial), and that which is condoned or seen as appropriately controlled by other means. In Chapters 18 and 19 we consider different contexts in which violence occurs (at home, on the roads and in the workplace) and use them to demonstrate the ways in which the line between acceptable and unacceptable killing is socially constructed. We show that the criminal law definitions of unlawful homicide (murder, manslaughter and infanticide) cannot on their own explain the ways in which deaths are culturally understood as acceptable or not acceptable. At the same time, we seek to emphasise the argument that criminal regulation has an uneven and contested relationship with other forms of social control. We trace the history which explains how large corporations have tended to remain beyond the reach of criminal law and consider whether the Corporate Manslaughter and Corporate Homicide Act 2007 will significantly alter this.

Chapter 20 considers the boundary issues of homicide, and begins by questioning whether all killing is wrong. Medical practices in relation to the non-treatment of neonates (i.e. newly born infants), and the extent to which doctors can use pain-killing drugs to hasten death presents difficult questions at the margins of life and the margins of law.

Drug and alcohol control

The regulation of drugs and alcohol is instructive as an example of the legal response to, and construction of, a ‘social problem’. This particular ‘social problem’ periodically generates moral panics which result in, and rely upon, the representation of offenders as ‘dangerous’ and of the relevant activities as presenting a general threat to crime control and to ‘law and order’. A number of specific questions can be raised about the criminal regulation of drugs and alcohol. Notable among these are the uneven ‘mens rea’ requirements under the Misuse of Drugs Act 1971, and in particular the arbitrary distinction between alcohol and other drugs. This division is especially contestable given the facts that alcohol has greater addictive qualities than some of the proscribed drugs under the Misuse of Drugs Act 1971, and is arguably more strongly associated with health and social problems in the UK than is, for example, cannabis (Husak 2002). While the possession of both alcohol and tobacco is generally lawful, their use is highly regulated in terms of those to whom they can be sold and where they can be consumed.

There are many specific offences associated with alcohol and drug use. While alcohol is lawfully available but regulated, the possession of many drugs is prohibited. A large number of people come into the criminal justice system through alcohol-specific offences, for example being drunk and disorderly in public, and offences against the licensing laws, such as selling or serving alcohol to underage drinkers.

Images of criminal law infuse our everyday lives. From newspapers and television news programmes reporting incidents or trials, to detective novels, films and television series such as The Bill, Law and Order, Silent Witness and The Wire, crime and the control of crime pour into our individual and collective consciousness. The images produced are complex and contradictory: heroic detectives compete for our attention with ‘bent’ police; wily criminals and informers jostle with the inadequate, the psychopath, the wife-batterer and even, on occasion, the offender with whom we are invited to sympathise; the dramatic appeal of racial injustice vies with the cultural resonance of racist stereotypes.

For many people who are neither practising lawyers nor legal scholars, criminal law represents the dominant image of what it is to have a legal system. In thinking carefully about the nature of criminal law, however, this familiarity can be an intellectual barrier. Most people's image of crime is dominated by crimes of violence or serious crimes against property, proceeded against through trial by jury. But in fact violent and sexual offences make up only a fifth of offences (and only half of violent offences involve injury). The reality of the criminal justice system is dominated by the processing of road traffic offences, minor public order and low-level property offences. Many never reach a court, having been diverted via fixed penalty notices or cautions (Young 2008).

Territory, technology, youth

Territory

While the separation between private and public spheres of activity was never as simple as it sounded, we have recently witnessed a rapid decline in the availability of public space, and increasing modes of surveillance (CCTV) both in public streets and in ‘private’ public areas such as shopping malls and leisure facilities. The concern with surveillance and controlling citizens' activities is seen in our discussion of the array of harassment offences and of regulatory techniques such as the anti-social behaviour order, child curfews and the planned introduction of identity cards (Identity Cards Act 2006). Two distinct types of ‘threat’ to order can be identified. One type – perhaps the one that springs to mind when the term ‘public order’ is used – encompasses those threats that arise during specific protests or gatherings such as political demonstrations or sporting events. The second type arises more frequently but in far less organised circumstances from the eruptions of groups of people – often young, often drunk – from pubs and clubs on Friday and Saturday nights. There is then a blurred line between ‘public order’ in the traditional sense of groups on the streets (which may or may not be pursuing political aims), and ‘keeping streets orderly’ (which informs much recent legislation) through control of those thought to threaten the peace and quiet of the community. That this is an artificial division is exacerbated by the tendency for laws passed for one purpose to be appropriated for another.

It is useful to place interpersonal violence in the context of crime levels as a whole. The Home Office annual report on crime refers to the British Crime Survey (BCS) and to crime recorded by the police:

We focus here on assault and battery, and on the three main general offences under the Offences against the Person Act 1861: actual bodily harm (s. 47), malicious wounding (s. 20), and causing grievous bodily harm with intent (s. 18). The somewhat imperfect hierarchy of the 1861 Act reflects both differences in the seriousness of injury or harm and in the mental element. The government initially endorsed the codified set of offences based on the Law Commission's proposals in Report No 218 (1993) but as yet no legislation has been introduced (Home Office 1998).

Conceptions of property in social and political thought

The institutions of private property and the ‘free market’ through which it is exchanged are core components of modern Western societies. In liberal thought, the model of individual property rights underpins the general conception of personal rights; the ‘ultimate’ human right is often seen as one of self-ownership, and the paradigm of the free individual is the actor in the market. The protection of private property rights is therefore an important concern of criminal regulation, and the perceived success of the criminal justice system in this respect is central to judgments about its efficacy and legitimacy. Criminal law's regulation of property takes place within a framework of civil law, which sets up property rights in laws relating to land tenure, ownership of personal goods and transfers of ownership by contract, gift or succession: criminalisation of property crime is therefore just one among a range of legal arrangements which underpin the conditions of trust and security of expectations which allow a market economy to flourish. Most of the time the idea of what counts as legally protected property is uncontested – whether it is tangible items such as a car, a mobile phone – or intangible such as a bank account – but technological developments such as the explosion in economic activity conducted via the internet have raised further questions.

In this Section, comprising Chapters 11, 12 and 13, we examine criminal law's regulation of property. Both the importance of the social institution of property and the prevalence of property offences, which constitute three-quarters of recorded crime (Home Office 2009), make this a highly significant field. It is also a vast field, encompassing many different kinds of terrain, and even a partial survey such as that offered here can be disorienting. In what follows, therefore, we focus upon a number of specific themes which may help to illuminate the landscape.

First, following on from the theme of the last two Sections, much of our discussion is concerned to examine the relationship between property crime and perceived risk or threats to the prevailing social order. In this context, patterns of enforcement of property offences vary as between offences which are seen as more or less threatening to social order, closer or more distant from our ideas of ‘real’ crime – for example, tax evasion or corporate fraud on the one hand versus shoplifting or social security fraud on the other. These varying levels of enforcement are facilitated by the wide discretion of the police and specialised regulatory bodies; they illustrate both the blurred boundaries between property and public order offences and the potency of legal conceptions of ‘real’ crime.

Second, the field of property offences illustrates the fragility of social consensus about the lines to be drawn between ‘criminal’ and ‘non-criminal’ behaviour.

The orthodox separation of sexual offences into consensual and non-consensual offences significantly shapes legal images of sexuality. Yet, as we have seen, the question of consent in adult sexual relationships is a contested one. Duncan notes that:

The extraordinary number of different offences, albeit most now gathered in the Sexual Offences Act 2003, testifies to the confusions besetting what are regarded as appropriate legal and social responses in this area. What is the connection between sexual activity between two 15-year-olds and the persistent sexual abuse of a small child by a relative? Is child sexual abuse an abuse of sexual autonomy, or of trust, or of physical security, or all three?

Conceptions of violence

The term ‘violence’ is rarely found in statutory definitions, although, as we saw in our exploration of violence in the public order context, the Public Order Act 1986 provides an exception (see Chapter 6). Violence, however, is a concept which informs and underlies the practice of criminal law. For example, robbery is treated more seriously than theft because it involves the use of direct force. Violence is hidden in other ways. Road traffic offences exist in part to protect people from injury, yet until the emergence of ‘road rage’ they were never perceived as being connected with the stereotype of violent behaviour; academic studies of criminal law routinely ignore road traffic offences. This academic sidelining, as though the issues raised were inherently less interesting than the intellectual challenge of theft of a wild anemone or criminal damage of a greenhouse, reflects their wider marginalisation from issues of serious concern.

As the next two extracts emphasise, violence has to be viewed as historically, culturally and situationally contingent: it does not define itself. As Cotta argues, ideas and images of violence are contested and changing. Perceptions of violence are affected by changes in ‘space, time and field’. We live in an era of intensive communication and increased mobility, which has rendered ‘space’ less fixed. Into this continuous and continuing space, the concept of ‘time’ has become compressed so that news is conveyed almost contemporaneously.

Criminal laws have long had something significant to say about regulating the maternal-fetal conflict. Principally, this has been expressed through provisions in the Offences Against the Person Act 1858 and the Abortion Act 1967. However, scientific and technological advances in the field of reproductive medicine, coupled with shifting expectations and moral attitudes, have prompted the creation of various criminal offences designed to prevent science taking us out of our ethical comfort zone. This takes place at a time when the criminal justice system and healthcare are no longer such strange bedfellows (see Erin and Ost 2007). In this chapter we start by considering the state of the abortion debate today, before moving on to consider criminal law's rather ambivalent attitude to surrogacy and its more clear moral misgivings about cloning. We end by considering the compromises criminal law makes in relation to individual requests for assistance in ending their lives.

Reproductive crimes?

Contraception and abortion

Female sexuality is constructed and regulated through a wide variety of social practices. Significant among these are medical practice and laws on various aspects of reproduction: contraception, abortion, sterilisation and surrogacy arrangements. The use of criminal law as opposed to other forms of regulation appears to be unpredictable, if not arbitrary. Abortion is the clearest and historically best established example of control through criminal powers. Historical evidence shows that abortion has existed in practically all societies (Petchesky 1986).