It is widely assumed that the rate at which governments create criminal offences by legislation has increased significantly in recent years. The orthodox position in criminal law scholarship (and in news reports on criminalisation) is to treat this as established fact, but there is little if any empirical evidence to support the assumption.
In a paper published in the Criminal Law Review this week, we present data from an ongoing research project which undermines this claim. Our data reviews the number of offences created by legislation in the UK over three twelve month periods, each immediately following a General Election: 1951/52, 1997/98 and 2010/11.
In 1951/52, 786 offences were created applicable to England – a figure higher than in 2010/11, where the equivalent figure was 634. The figure in 1997/98, however, was highest of the three, at 1235.
In the full paper, we examine also the extent to which offences were created in order to implement international obligations, the subject-matter of the offences and the maximum penalty attached. Although it might be assumed that most such offences are “regulatory” in nature, they are subject to potentially hefty penalties, with a majority of the offences created in all three sample periods carrying maximum sentences of imprisonment. This is so even though the vast majority of offences are created by statutory instrument, and without Parliamentary scrutiny, rather than primary legislation.
None of this means that all of us are, on a day to day basis, potentially at risk of committing any one of thousands of criminal offences. The vast majority of offences are not aimed at the public at large, but instead at individuals acting in some form of “special capacity”, such as being engaged in a particular trade, profession or activity, or holding a particular licence. The enormous number of offences, however, raises questions about the accessibility of the law to the citizens who are expected to comply with it.
J Chalmers, F Leverick and A Shaw, “Is formal criminalisation really on the rise? Evidence from the 1950s”  Crim LR 177-191 is available in hard copy and via Westlaw. A shorter research note, “Patterns of criminalisation in 1951/52, 1997/98 and 2010/11”, is available for free download here.