Creating criminal offences
This is a single section from Chapter 24. Read the full chapter here.
Should the conduct be subject to the criminal law?
Compelling reasons must exist to justify applying the criminal law to conduct.
The authors of Principles of Criminal Law make the following point:
[…] even though a prima facie case can be made in favour of criminalising an activity, for example because it is harmful to others, it does not follow that criminal legislation is the best response. Other forms of intervention need to be considered; sometimes, it may be best not to legislate at all. The criminal law is a powerful, expensive, and invasive tool. It should not be used lightly.
Imposing criminal sanctions is a serious matter that has significant consequences. For example, making an action subject to the criminal law may authorise the Police or other enforcement agencies to search and arrest an individual and to search and seize their property for the purpose of investigating or preventing the commission of a crime.
Depending on the seriousness of the misconduct, a person subject to a criminal conviction may experience a loss of liberty (imprisonment or home detention), a loss of property (confiscation, fines, or reparation), or both. A person who is convicted acquires the stigma of a criminal conviction, which may affect future employment or overseas travel.
Because of the possible consequences, criminal offences should be created with care, and with convictions being possible only if imposed by a court where the offence is proved by the prosecution to the standard of “beyond reasonable doubt” following a fair process (including the minimum standards of criminal procedure set out in the New Zealand Bill of Rights Act 1990).
The following factors, not all of which must be present, may be relevant in determining whether conduct should be criminalised:
- the conduct involves physical or emotional harm;
- the conduct involves serious harm to the environment, threats to law and order, fraud, bribery or corruption, or substantial damage to property rights or the economy;
- the conduct, if continued unchecked, would cause significant harm to individual or public interests such that public opinion would support the use of the criminal law;
- the conduct is morally blameworthy, having regard to the required intent and the harm that may result; or
- the harm to public or private interests that would result from the conduct is foreseeable and avoidable by the offender (for example, it involves an element of intent, premeditation, dishonesty, or recklessness in the knowledge that the harms above may eventuate).
It is undesirable to further criminalise conduct that is already addressed by the criminal or civil law unless doing so would serve a goal that is not currently served by the law.
 AP Simester, WJ Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, 2012) at 21.7.2.