Friday, February 07, 2014

Using hypotheticals

Even if your own legislature hasn’t replicated s 68 of the Criminal Justice and Public Order Act 1994 [UK], an offence of aggravated trespass, it is worth reading the judgment in Richardson v DPP [2014] UKSC 8 (5 February 2014).

That is so because the reasoning illustrates how hypotheticals are used in judicial interpretation of criminal legislation. Correct identification of the focus of the provision [12], reflecting the legislative intent [13], highlights the central concept (here, “activity” and then whether it is “lawful activity”), and its limits are analysed by reference to hypothethicals (here, to exclude incidental or collateral or remote matters).

So, in this particular legislative and factual context, the activity was the selling of soap, and this was a lawful activity for the relevant shop, which would not have been made an unlawful activity if - all these are hypotheticals - an employee had been paid below the minimum wage [12], or if taxes had deliberately not been paid [19], or if the shop had been involved in money laundering in the way suggested by the appellant [18], or even if the selling activity had taken advantage of a war crime committed by another person (taking advantage of a crime is not the same as encouraging or assisting its commission [17]). Wrong labelling of goods sold could make the selling unlawful, but here there was no offence of selling goods wrongly labelled, and anyhow regulations required that there be proof that a purchaser would not have bought the goods if he had known of the error. These are all context-dependent and not general propositions.