Fair Labelling in Criminal Law: Towards an Account of Why it Matters, 21 Novemeber, 2018

Dr Matt Gibson, University of Liverpool


'Fair labelling' of offences has become common currency in criminal law literature. Commentators agree that it involves questions of evaluation (gauging relative seriousness of types and degrees of wrongdoing) and taxonomy (subdividing and labelling that wrongdoing). Nevertheless, despite consensus on how fair labelling functions, existing scholarship neglects a logically prior question: why does fair labelling matter in the first place?

This paper - which forms part of a future monograph on fair labelling - sketches a response to that question. Clearly, within the criminal justice system, offence labelling has 'formal' implications at an internal level for defendants and other parties (such as victims and victims' families). These implications relate to charging decisions, operation of evidence law at trial and sentencing. However, the paper argues that such implications do not explain the importance of fair labelling. Rather, this importance is located in the 'informal' implications of offence labelling for defendants, their families and the general public (including subsets of the public, notably employers). Those implications arise at an external level, following conviction as a statement of criminal responsibility communicated to the wider community. They comprise the societal consequences of criminal conviction and censure, as stemming from stigma. This not only affects access to jobs and housing, but also generates social opprobrium, ostracisation and hostility.

On this view, the value of fair labelling connects with the condemnatory power of the criminal law - and thus its special moral legitimacy as the most coercive system of legal regulation. If this is correct it raises fundamental (and controversial) questions about how far, and in what ways, the public should play a role in the ex ante criminalisation process. This is because a clear link exists between the public's ex post ability to react appropriately to convicted wrongdoing and its ex ante perception of how far that wrongdoing is criminalised legitimately.


Dr. Matt Gibson is Senior Lecturer in Law at Liverpool Law School, University of Liverpool. During 2017/18 he was also a Visiting Scholar at the Centre for Penal Theory and Penal Ethics, Institute of Criminology, University of Cambridge. He specialises in criminal law doctrine and theory, with a particular focus on the principle of ‘fair labelling’: the idea that crimes should be sub-divided and labelled according to types and degrees of wrongdoing. He is currently in the process of planning a monograph which defends a specific account of the fair labelling principle. Beyond this, he also researches more general issues of criminalisation, offence definition and offence classification. Separately, he has research interests in crime and religion, notably the extent to which - if at all - religiously motivated conduct can and should be accommodated in criminal law.

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