Here you can read the winning entry to our 2021 Essay Competition, written by Cara Shepherd. Congratulations to Cara! Second place went to Sean O’Neill and third was Tochi Ejimofo. The question posed was When, if ever, should it be a crime to go to a friend’s for dinner?

Thank you to our judges (Mrs Justice Arbuthnot, HHJ Sarah Whitehouse QC and Duncan Atkinson QC), and to all the entrants. You can find more information about the competition here: https://www.6kbw.com/diversity-and-inclusion. The question for the 2022 competition will be announced in September.

When, if ever, should it be a crime to go to a friend’s for dinner?

By Cara Shepherd

Criminalising going to your friend’s for dinner is a clear example of the way in which it may sometimes be necessary to criminalise aspects of private life in order to protect the public good. Whilst it may be seen as an innocent act between only you and your friend, in reality there can be a wider impact on other people. It is sometimes justifiable to infringe on individual liberties in order to protect the public good. Criminalisation is broadly speaking justifiable in so far as actions are “contrary to the public good” and interfere with the happiness or freedoms of others.[1]

There exist obvious occasions when going to your friend’s for dinner could be a criminal offence: if you are under a court imposed curfew; if your friend’s home is a crime scene; if they have filed a non-molestation order; and if they have not invited you. All of these specific scenarios indicate ways in which there may be specific circumstances that mean that going to a friend’s house for dinner is a crime. There are conditions where you specifically cannot go to that specific friend’s home. However, there remains the question as to whether there is some reason or occasion when going to a friend’s for dinner is a universal crime: where no individual can go to anyone’s home.

There does exist historical precedent for such a blanket extensive restriction of personal liberties. During World War II, the blitz provided a means through which the state was able to extend its control into the home: where private and personal spheres blended together.[2] The policy of ‘Blackout’, mandating when people could have their lights on in their homes, was accepted as a necessary means of protecting public safety. This is illustrative of the way in which private and public spheres necessarily overlap and how actions in the private sphere can directly impact the public. Whilst the lights were in private residences, the external visibility of that light threatened the safety of all those around. It was therefore seen necessary to pose restrictions on private freedoms. Fundamentally, there exist extraordinary situations in which some acts that arguably exist in the private sphere must be criminalised in order to protect public safety.

Indeed Article 8 of the European Convention on Human Rights centres on the right of every individual to have a private life without interference from the government. There are crucial exceptions, however, to account for the fact that the public good can be prioritised above this right to a private life. Such exceptions include “for the protection of health or morals, or for the protection of the rights and freedoms of others” thereby asserting the importance of not harming others.

The restrictions imposed by the lockdowns of the last two years are recent instances of a purported exception to the right to a private life. The threat to public health that was posed by the spreading pandemic meant that it was necessary for the government to assume temporary measures to restrict individual liberties in order to curtail this spread. These lockdowns thus serve as an interesting case study as to when it may be a crime to go to your friend’s for dinner.

Jeremy Bentham’s Cases Unmeet for Punishment discusses justifying those instances where acts should not be criminalised because to do so would be ineffective or detrimental. Writing as a utilitarian, Bentham’s criteria seek to determine whether criminalisation would maximise “the total happiness of the community”, or would “exclude mischief”.[3] Whether one agrees with the particular utilitarian goal or not, it would seem intuitive that the goal of making something a crime should be to disincentivise or put an end to the act. Therefore, the analysis offered by Bentham about the efficacy of making certain acts a crime is relevant in so far as determining whether criminalising going to your friend’s is right and effective in achieving its goal.

The first of Bentham’s criteria for whether something should be a crime or not is where a punishment is “groundless”, with emphasis placed on the consent of the relevant parties to the negative effects of the act.[4] The notion of consent is crucial here: if all involved knowingly consent to whatever negative impact there is it seems groundless for such an act to constitute a crime. On the other hand, if it is impossible for the public sphere as a whole and as a composite of individuals to consent to the effects of an act, this would be a fundamental reason for the act to be illegal. In the case of a dinner, whilst you and your friend may knowingly consent to the risk of virus transmission, you both interact as part of a broader whole and cannot gain the consent of all who are threatened by you contracting the virus. The punishment and criminalisation are therefore not groundless because it is impossible for you to achieve the consent of those who are put at risk by your interaction.

A crucial question introduced by Bentham is whether punishment would be “unprofitable” or if it would be capable of preventing the action. It is also crucial to consider whether trying to police the crime would take more money or resources than the outcome warrants. Whilst Bentham specifically discusses the potential efficacy of punishments, the broader question remains of whether making something a crime is actually useful in preventing it from happening. Would criminalising going to your friend’s for dinner actually prevent people from doing so and therefore would the crime have any meaning?

The question of the practicality of punishing crimes is particularly relevant to policies that concern the private sphere: without extensive surveillance it is not really possible to determine when someone is committing these crimes. Without the infrastructure needed to monitor people, it is impossible to assert that this crime can be effectively punished. This practical limitation was notably present during the recent lockdowns: there were frequent instances of people breaking restrictions and entering each other’s homes. There was insufficient policing and therefore the meaning behind the crime was diminished.

However, people break laws frequently and some crimes are intrinsically difficult to police, yet that alone does not mean that they should not be criminalised. Whilst under Bentham’s utilitarian metric such acts may not be worth punishing, there remains a principled basis for criminalising these acts. In doing so there is a formal recognition of these acts as being damaging to the public good and a basis for police and government action to be taken against those who commit these acts, regardless of the difficulties. Furthermore, whilst not everyone will follow the law, there are a significant number of people who will not go to their friend’s for dinner purely because it is a crime. Therefore, even if you don’t entirely prevent instances like this from happening, it is certain that making this act a crime reduces the amount that it does happen.

It is clear, however, that some arbitrary line must be drawn. To go to one’s friend’s house will always carry risks: there is always the threat of the spread of a disease, for example. Therefore, it is important to note why the specific context of the spread of Covid-19 warranted a universal lockdown. The answer is likely less principally justified and more based on the question of the scale of the threat posed.

When trading personal liberties for public safety, it reduces down to an evaluation of the damage posed if the act were legal. Specifically in this context it was necessary to prevent the overwhelming of the NHS and prevent as many excess deaths from happening as possible. Therefore, to make something a crime is as much dependent on practicality as it is on principles and philosophy. Such measures should never be taken lightly and should always be done with the recognisation that you are infringing on intrinsically valuable individual rights and liberties.

Therefore, when going to your friend’s for dinner has undeniable and extensive impacts on non-consenting parties it must be a crime. The criminal justice system is fundamentally about protecting public good and should criminalise acts to this end.

 

[1] See Cesare Beccaria, An Essay on Crimes and Punishment, (1793).

[2] James Greenhalgh, “The Threshold of the State: Civil Defence, the Blackout and the Home in Second World War Britain”, Twentieth Century British History, 28:2 (June 2017), p.187.

[3] Jeremy Bentham, Introduction to the Principles of Morals and Legislation, (Oxford, 1907), p.170.

[4] Bentham, p.171.

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