‘Smoke gets in your eyes …’: the criminalisation of smoking in enclosed public places, the harm principle and the limits of the criminal sanction

Abstract

Legislation has been enacted in both England/Wales and Scotland which criminalises smoking in certain places. This paper uses these prohibitions as a way of exploring two prominent theories of criminalisation which were employed in the parliamentary debates on the legislation, namely legal paternalism and the liberal ‘harm principle’. The paper argues that the creation of these offences cannot be justified by paternalism, and that the risk of harm to non-smokers from ‘passive smoking’is a preferable justification. This latter rationale could be used in support of more extensive smoking prohibitions in the future. The paper recognises the desire of many to limit the use of the criminal sanction and concludes by suggesting that unwarranted criminalisation can only be avoided if legislatures proposing new offences clearly articulate their reasons for believing that the criminal law is the best mechanism for reducing or deterring the conduct at issue, and demonstrate that the behaviour cannot adequately be deterred by non-criminal measures.