Theorising Criminalisation through the Modalities Approach: A Critical Appreciation

Abstract

New scholarly paradigms in the study of criminal law come along rather rarely. Despite extensive published work on this core topic in the educational curriculum and intellectual programme of the legal academy in most countries, the basic conceptual tools which inform its exposition and analysis in mainstream scholarship have remained relatively stable over the last half century. Moreover, they have not evolved in proportion to the development of the field at large. Valuable attention to rethinking the conceptual parameters of the field has come from contextual, historical, feminist or otherwise critical scholarship (Ashworth 1991; Farmer 2016; Fletcher 1978; Loughnan 2012; Naffine 2009; Norrie 2014; Wells and Quick 2010); and—as the contributors to this fine essay note—from site-specific areas of criminalisation. But, the conceptual basis for theorisation remains a pressing concern. This is particularly so given the recognition, in much of the most innovative recent scholarship, that the field of criminal law cannot be fully understood independent of the dynamics of criminalisation conceived as a broad social practice. This development is giving a new spin to the longstanding focus in theoretically informed criminal law scholarship on the question of responsibility (Ashworth forthcoming; Ashworth and Zedner 2014; Duff et al. 2010, 2011, 2013, 2014; Farmer 2016; Horder 1992; Lacey 2016; McSherry, Norrie and Bronitt 2009; Norrie 2016; Ramsay 2012).

The Criminalisation of Women in Joint Enterprise Cases: Exposing the Limits to ‘Serving’ Girls and Women Justice

“…Instead, our analysis here demands that we revisit a longstanding but arguably under-conceptualised aspect of women's punishment, that of gendered processes of criminalisation (Carlen 1983;Edwards 1984;Chadwick and Little 1987). Lacey (2018) provides a helpful operational definition, importantly distinguishing between 'formal criminalisation' as reflected by policy responses and legislative changes that impact on the potential to criminalise and 'substantive criminalisation', which manifests in the decisions, patterns and impact of the application and enforcement of any formal law or policy. Our analysis contributes to a conceptualisation of substantive criminalisation, examining how such processes and decisions are structured and experienced by those girls and women selected for punishment (Carlen 1983).…”

“…The one that did the murder got less because he went guilty for manslaughter. The women's experiences of these early interactions and decisions reveal how in their cases, the potential to criminalise invoked in JE legislation and policy around secondary liability is then acted upon at multiple points in the process to realise substantive criminalisation (Lacey 2018). We can begin to pinpoint policing and prosecution decision-making that results in women being on trial for these serious violent offences.…”

“…Our analysis demonstrates that criminalisation is a complex process. Formal provisions in policy and the law, such as JE, create a potential to punish, yet it is through a series of cumulative decisions that the power to criminalise is realised (Lacey 2018;McNamara et al 2018). The women convicted under JE are arguably at the most severe end of the spectrum of women's criminalisation, convicted of serious violent crimes such as manslaughter or murder, with minimal or no involvement in violence, and sentenced to very long prison terms.…”