Dennis J. Baker’s research while affiliated with King's College London and other places

In this article, it is argued that an application of the harm principle to many forms of nontherapeutic cosmetic surgery shows that these procedures are a form of physical harm, not a form of medicine, and therefore ought to be criminalized. Not only does the harm principle support the case for criminalization, but so too do the relevant precedents. This article focuses on the general moral justifications (wrongful harm to others) for criminalizing unnecessary harmful cosmetic surgery, but legal doctrine is also invoked to demonstrate that there is a legal justification for criminalization. The famous English case of R. V. Brown1 will be discussed to outline the core legal case for criminalization. This article does not aim to provide a comparative study of the U.S. and English authorities, but rather aims to make theoretical arguments for criminalization, and thus, works from the legal premise that in most states the U.S. courts have taken a similar position to that taken in the seminal English House of Lords decision in R. V. Brown. © 2014 by the Regents of the University of California. All rights reserved.

This paper evaluates fair labeling in the areas of criminalization and punishment in China. We consider the justice of criminal labeling from a comparative perspective by examining several core offenses and comparing how these offenses would be labeled and punished in China, the United States, and Britain. Our analysis shows that collectivist conceptualizations of responsibility, which are deeply rooted in Chinese thinking, are yielding to more individualistic conceptions of justice. Notwithstanding this phenomenon, themes of collectivism and deterrence continue to influence criminalization and punishment decisions in China, especially where individual acts of wrongdoing aggregate to form serious harm. Our analysis is doctrinal in that instead of conducting a large empirical study, we examine several high-profile cases and outline the general theoretical distinctions between them. Our analysis focuses on three core areas of wrongdoing: bribery offenses, manslaughter, and the criminalization of those who are remotely connected to a primary harm. We examine the way China handles corruption and corporate criminality when they result in human fatalities and ask whether their approach is reconcilable with Western notions of justice and fairness. Thereafter, we analyze and compare the use of the proportionality principle in punishment by the Chinese and Westerners. We conclude that Western definitions of harm and proportionate punishment are not universal, nor even consistently adhered to in Britain and the U.S.

We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.

This paper considers three major issues in the law of complicity: (1) the role of oblique intention in complicity; (2) complicity liability for those who engage in mutual gun- fights in public streets; and (3) the scope of the ‘exempt party’ rule. All of these issues arose in R v Gnango, but unfortunately the UK Supreme Court’s treatment of those issues was wholly unsatisfactory. Nonetheless, that decision provides us with a perfect backdrop for exploring these issues. I aim to demonstrate that the Lords got the law wrong. I will put forward an alternative interpretation of the law. I rely extensively on American law, but I am not aiming to carry out a full comparative study. Instead, the aim is to shed light on how the law might be reformed, interpreted and developed in the UK. The American case law is useful for highlighting some of the legal misconceptions drawn by the Lords in R v Gnango.

In this paper, I examine whether there is any criminal or civil liability involved in photographing people in the nude in public domains - including private domains that are in public view such as the front and back yards of private homes. It will be argued that from the criminal perspective it is not a crime for a photographer or anyone else to take pictures of people in their backyard or private garden - or for that matter in another’s backyard or private garden, unless he or she commits trespass to take the photograph. The concept of front or backyard a fortiori extends to farmland, and larger areas on private estates that can be viewed from a public road or street. Thus, if there is no trespass, breach of confidence, or harassment involved in taking the picture, there can be no criminal or civil liability. If a person stands at his window in the nude, then he can hardly claim that his privacy has been violated if those passing by on the public footpath take photographs of him. Ms Kate Middleton has to take some responsibility for her own actions. Any celebrity knows that the paparazzi will not be far away. Arguably, when Ms Middleton took her clothes off she must have realized that her taxpayer-funded security officers and taxpayer-funded servants might see her, even if she was too naïve to understand that the paparazzi and their long lenses might not be far away. (If the security officers or servants had taken the photographs and sold them, then that would have raised different issues.) Unearned fame cannot be used merely when it suits its recipient: the massive advantages of having unearned fame of gargantuan proportions, even when it has some sort of government stamp on it, means the recipient has to be much more cautious than non-famous people when it comes to maintaining privacy. They have to take precautions to prevent their private information being viewed from public places. If a person takes her clothes off in public view, there is little the law will do to punish those who record what they have seen in public view. It is neither here not there that a long lens or binoculars where used: if a person walks around her New York apartment in the nude with the curtains open, she can hardly complain that a person living in an apartment a few blocks away is watching with binoculars. Likewise, if a farmer walks in the nude on a hill on his farm, he can hardly complain that passing motorists have used a long lens to photograph him from a distance. Per contra, if a famous person were in a quasi-private place that cannot be viewed from a public location, there would be civil law remedies available. Take the case where footballers trustingly allow journalists and photographers into their dressing room on the basis that they will not take photographs of them while they are in the nude: see Ettinghausen v. ACP, (1991) 23 NSWLR 443 cited in Dennis J. Baker, 'The Sense and Nonsense of Criminalising Transfers of Obscene Materials,’ (2008) 26 Singapore Law Review 126 at footnote 72). However, when the private information is put in public view, there is no criminal liability, even if it causes its victim mental distress. Nor would this be an offense against the person under the Offenses Against the Person Act 1861, as mental harm is only made out in English law where the victim suffers a recognized medical condition: see Dennis J. Baker, Glanville Williams Textbook of Criminal Law (2012) Chap. 9). Likewise, there seems to be no civil remedies available: there was no trespass, no breach of confidence, no nuisance and so on. The offenses that might catch some paparazzi are those found in the Protection from Harassment Act 1997, but they only apply where there has been a course of conduct. Taking a one-off picture from a public viewpoint does not constitute a course of conduct.

R v Evans [2009] EWCA Crim 650, [2009] 1 WLR 1999 holds that if a person merely facilitates another to create a dangerous situation for himself, that person may be held criminally liable for a homicide offence if that self-endangerment results in death. Evans's sister made an intervening choice to self-inject and it was her independent self-injection that was the direct cause of the dangerous situation. Evans's pre-existing duty of care was grounded on her act of supply and her awareness of the fact that her act of supply had facilitated the creation of a dangerous and life-threatening situation. Evans did not create the dangerous situation, but rather she merely made an indirect causative contribution to the dangerous situation. Furthermore, if she had merely supplied the drugs and had left the scene, and therefore had remained ignorant of the fact that her act of supply had resulted in a dangerous overdose situation, her act of mere supply per se would nothave been sufficient for a conviction of gross negligence manslaughter. This commentary provides a critique and sets out what that law ought to be when an agent intervenes and makes a fully independent choice to self-harm by injecting drugs supplied by another into her own arm.

In this paper, I argue that civil preventive detention is tolerable because it is the lesser of two evils. I argue that the serious sex offender is partially to blame for his preventive detention, because he offends, re-offends and refuses treatment whilst in prison with a full awareness of the potential preventive detention consequences. However, I question the fairness of extending an offender's penal sentence beyond what his or her past wrongdoing warrants. I argue that laws allowing dangerous offenders to be imprisoned beyond the length of their original sentences cannot be reconciled with the cardinal requirements of justice and fairness and therefore should be abrogated. The proportional punishment constraint means that punishment has to be proportionate with the culpableness and harmfulness of the offenders' past wrongdoing. Because dangerous offenders do not deserve further penal sanction, civil confinement should be used instead of imprisonment in those exceptional circumstances where it is absolutely necessary to prevent further harm doing. Furthermore, if a detailed supervision order provides a reasonable solution, then it should be used instead of civil confinement. I argue that civil confinement and supervision orders can be reconciled with justice. In the final section of this paper, I argue that a person's right to justice and fairness can be overridden in exceptional circumstances to prevent aggregate harm of an extraordinary grave kind. However, the harm posed by serious sex offenders is not sufficient to override the proportional punishment justice constraint, because it is not sufficiently grave in aggregate terms and civil confinement is also available as a less draconian alternative.

This book is aimed at legislators, as clearly even liberal courts such as The Warren Court (The Supreme Court of the United States between 1953 and 1969), will find themselves hamstrung by some of the technicalities imposed by our ancient constitutional texts. But it is hoped that the courts will continue to do what they can, as the United States Bill of Rights and also the European Convention for the Protection of Human Rights and Fundamental Freedoms, to a large extent, constitutionalize the moral right not to be criminalized. None the less, much more needs to be done. It is time for twenty-first-century legislatures to push for constitutional reform. Our existing charters have not kept pace with social change and this has been exacerbated by a lack of innovation in our higher courts. Of course courts cannot usurp the role of the legislature, but they should not go too far the other way either. The piecemeal innovations of the Warren Court have largely been read down by later courts. The Bill of Rights needs to be amended to make it easier for judges to apply it to modern problems, as the current text leaves too much discretion to the judges -- discretion which is not always used wisely. It means that rights are contingent on the makeup of the court; the on the makeup of the next court and so forth. We need an express right not to be unfairly criminalized!The Warren Court expanded civil rights liberties and judicial powers in an extraordinary way, but in recent decades the pendulum has been swinging against human rights; unless the rights violation has involved high profile terrorists and people of similar ilk. If the media is present, then so too are the human rights lawyers. The human rights lawyers are not too interested in promoting human rights in areas that do not attract great publicity and financial reward. Everyday citizens are by and large ignored by those who make a living by promoting human rights. We all know that it is wrong to send a person to prison for 50 years for shoplifting, but such a sentence is possible in America. Likewise, the United Kingdom has had a recidivist nudist locked up for 10 years for his exhibitionism -- this is a severe sentence even for a recidivist where the prohibited conduct merely cases offense to others, rather than harm to others. Alas, we ask China and other countries to follow our standards, but in doing so we must be surely asking the international community to follow some draconian practices. If the Supreme Court is legally and constitutionally bound to read down rights so as to allow a person to go to jail for 50 years for shoplifting, then it is time for the legislature to take an active role to bring our rights into line with the expectations of people living in the twenty-first century. This book presents arguments and proposals for constraining criminalization with a focus on the legal limits of the criminal law. The book approaches the issue by showing how the moral criteria for constraining unjust criminalization can and has been incorporated into constitutional human rights and thus provides a legal right not to be unfairly criminalized. The book sets out the constitutional limits of the substantive criminal law. As far as specific constitutional rights operate to protect specific freedoms, for example, free speech, freedom of religion, privacy, etc, the right not to be criminalized has proved to be a rather powerful justice constraint in the U.S. Yet the general right not to be criminalized has not been fully embraced in either the U.S. or Europe, although it does exist. This volume lays out the legal foundations of that right and the criteria for determining when the state might override it.

This article considers the decision of the Court of Appeal in R v Clinton where Lord Judge CJ speaking for the Court of Appeal held that sexual infidelity could be considered under the third prong of the new partial defence of loss of control, even though it is expressly excluded under the second prong. We argue that sexual infidelity is excluded from being considered under all the prongs of the new defence. It is expressly excluded as a form of qualifying provocation, which means it cannot be considered as a ‘circumstance’ that might prevent a person of D's sex and age with a normal degree of tolerance and self-restraint from killing. The objective tests in the new defence overlap, because the jury already has objective self-restraint in mind when it is considering the objectiveness of the provocation. When the jury is considering whether a normal person would have been provoked by the victim's conduct, it is also considering whether a normal person would have exercised self-restraint. Conceptually, these are two aspects of a single broader question: Was it reasonable for the defendant to lose control? Therefore, the jury cannot consider whether sexual infidelity prevented a person of a normal degree of tolerance from exercising control, even if it is a circumstance that relates to some other qualifying trigger. Where sexual infidelity is a (major) contributory trigger for the loss of control, it should not be considered under any of the prongs of the defence. If D has been taunted about his impotence in circumstances where he is enraged by his wife's sexual infidelity, the defence will only be made out if the jury accepts that the taunts about the impotence constituted objective provocation on their own, and that the taunts about the impotence per se might have prevented a person of normal control and tolerance from exercising self-restraint. The sexual infidelity would have to be compartmentalised, so that the jury would not be influenced by it.