Morality and Harm

• What are the three common features of crimes?

  • Public wrongs
  • Moral wrongs
  • Harm
• What are public wrongs?

  • Has a harmful effect on the public
  • Determined by Parliament and the Courts
  • Dependent on society and context
• What are moral wrongs?

  • Immoral acts deserving of punishment
  • There's an emphasis on moral autonomy as people have rational and emotional capabilities
• What is legal moralism?

  The theory of jurisprudence and the philosophy of law which holds that laws may be used to prohibit or require behaviour based on society's collective judgment of whether it is moral
• Arguments in favour of legal moralism?

  • Reflects societies norms
  • Justifies punishment
  • Allows society to educate offenders and potential offenders
  • Makes the law more predictable
• Arguments against legal moralism

  • Practical realities - not every criminal offence has a moral dimension
  • Immorality doesn't necessarily translate to illegality
  • Subjectivity to morality
  • Lack of universal definition
  • Lack of representation of differing views
• What were the facts of the case of R v Brown & Ors [1993]?


  • The five appellants were convicted on various counts of ABH and wounding under the Offences Against the Person Act 1861.
  • The injuries were inflicted during consensual homosexual sadomasochist activities.
  • The trial judge ruled that the consent of the victim conferred no defence and the appellants thus pleaded guilty and appealed.
• What was the major opinion in the SC on Brown?

  • Lord Templeman believed that the appeal should fail as cruelty is uncivilised and they have a right to protect society
  • Joined by Lord Jauncey and Lord Lowry
• What was the dissenting opinion in Brown?

  Lord Mustill believed that the case was more concerned with questions of private morality outside the remit of criminal law
• What statute was introduced following Brown?

  Domestic Abuse Act 2021 s.71 introduced the idea that consent to serious harm for sexual gratification is not a defence
• What is the harm principle according to John Stuart Mill?

  Everyone should be allowed to do and say what they like provided that this doesn't harm the interests of others
• The Harm principle and morality


  • An activity cannot be criminalised just because it is immoral
• Lord Devlin on morality

  • 'A moral cement' keeps society together and the state is entitled to use criminal law to protect that cement
  • The extent of disgust felt by society at a particular activity indicates if it challenges a fundamental value that underpins society
• What criticisms can be made of Lord Devlin's cement

  • Fails to consider multi-faith and multi-cultural societies which wouldn't have moral principles regarded as fundamental
  • Disgust of picking one's nose doesn't mean it's a fundamental moral principle
• DPP v Gough [2013]


  • Gough was a naturist and walked through the highways and byways with walking boots, a rucksack, and a compass around his neck
  • In breach of S.5 of the Public Order Act 1986
  • His actions contributed to "a breakdown of peaceful and law-abiding behaviour as evidenced by the reactions of the public"