Criminal law, regulatory frameworks and public health
Authors: Brownsword, R.
Introduction: Unless there is a reason for thinking that it is never appropriate to make use of the criminal law for public health purposes (and I know of no such reason), it will be for regulators to assess whether, in each particular case, such a strategy passes muster as both legitimate and effective. Lest we should assume that well-intentioned public health interventions, backed by the criminal law, will comfortably survive any such regulatory assessment, we should take note of Larry Gostin’s cautionary remarks: [T]he generalized use of the criminal law is unlikely to become an effective tool for public health. It discourages exactly those behaviors necessary for the collective good – testing, disclosure, and participation in clinical and public health programs. The criminal law also invites surveillance, selective enforcement, and discrimination. Clearly, where the criminal law operates in ways that are ineffective or even counterproductive relative to the governing regulatory purposes (whether those purposes concern public health or other public goods), there are reasons for employing more effective strategies. However, the focus of this chapter is not on the effectiveness of criminal law interventions but rather on the legitimacy of the criminal law (or other coercive regulatory strategies) being employed in support of public health purposes. Given this focus, the central question is: by reference to which standard(s) should we assess the legitimacy of the use of the criminal law (or other coercive regulatory strategies) for particular public health purposes? For example, would it be legitimate if the State penalised the smoking of tobacco in both closed and open public spaces or if it punished persons who do not submit to vaccination programmes? Would it be legitimate (if not always smart) to criminalise the spreading of dangerous or sexually transmitted diseases or to penalise an individual who exceeds a specified BMI score? Is the criterion of legitimacy one that is of general application for the use of the criminal law (a general justifying standard) or is it one that is of particular application where the regulatory purposes concern the promotion of public health? Not altogether surprisingly, the answer to such questions might well depend upon whether the respondent approaches the matter from a public health perspective or from the perspective of a cautious liberal criminal lawyer.