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7. Ibid, p 14.

8. Ibid, pp 84–85.

9. Morris, N and Hawkins, G The Honest Politician's Guide to Crime Control (London: Pheonix Books, 1970) p 2.Google Scholar

10. Mill himself had little difficulty with paternalism towards children, hence his reference to the person of ‘ripe years’– see text at n 8, above. Adults who lack full mental capacity may also be protected by the law, according to liberalism, since they are not necessarily capable of determining their own interests.

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14. Feinberg, Harm to Others, above n 11, p 36.

15. Ibid, p 37. ‘Other kinds of properly prohibited behaviour, like reckless driving and the reckless discharge of lethal weapons, are banned not because they necessarily cause harm in every case, but because they create unreasonable risks of harm to other persons’: ibid, p 11.

16. Ibid, p 36. See also ibid, p 109. For an argument that Feinberg ought not to have separated ‘setbacks to interest’ from ‘wrongdoing’, see Duff, RA ‘Harms and wrongs’ (2001) 5 Buffalo Criminal Law Review 13 CrossRefGoogle Scholar. See also Stewart, H ‘Harms, wrongs, and set backs in Feinberg's Moral Limits of the Criminal Law’ (2001) 5 Buffalo Criminal Law Review 47 CrossRefGoogle Scholar, in which the author argues the contrary: that Feinberg erred in not sufficiently separating ‘setbacks to interest’ from ‘wrongdoing’.

17. Robbery could be considered as an offence ‘against the person’, rather than a property offence, but is generally treated as involving dishonesty, hence as being within the latter category.

18. Of course, this raises the question why it is that the criminal law should focus on harms, as opposed to ‘offence’, ‘disorder’ or even ‘inconvenience’. For a discussion on this, see Dubber, MD ‘Theories of crime and punishment in German criminal law’ (2005) 53 American Journal of Comparative Law 679 at 683.CrossRefGoogle Scholar

19. There are exceptions to this; eg s 3 of the Road Traffic Act 1988, which makes it an offence to drive a motor vehicle without due care and attention or without reasonable consideration for other persons.

20. See Steiker, CS ‘Punishment and procedure: punishment theory and the criminal–civil procedural divide’ (1997) 85 Georgetown Law Journal 775.Google Scholar

21. C.28, in force in Wales from 2 April 2007, and in England from 1 July 2007. The terms ‘smoking’ and ‘smoke’ are defined in s 1(2), and ‘smoke free place’ in s 2, of the Health Act 2006. ‘Smoking’ refers to ‘smoking tobacco or anything which contains tobacco, or smoking any other substance’.

22. 2005 asp 13. This came into force on 26 March 2006. See also the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006, SSI 2006/90. ‘Smoke’ and ‘smoking premises’ are defined in s 4(1) and s 4(2) of the Smoking, Health and Social Care (Scotland) Act 2005.

23. Health Act 2006, s 8(4), and Smoking, Health and Social Care (Scotland) Act 2005, s 1, respectively.

24. As defined in the Smokefree (Premises and Enforcement) Regulations 2006, SI 2006/3368.

25. Health Act 2006, s 2(1). Public places are regarded as ‘smoke free premises’ only when open to the public, unless they are also used as a place of work (see below n 26).

26. Ibid, s 2(2). The prohibition applies only to places of work which are used ‘by more than one person (even if the persons who work there do so at different times, or only intermittently)’, or ‘where members of the public might attend for the purpose of seeking or receiving goods or services from the person or persons working there (even if members of the public are not always present)’: Health Act 2006, s 2(2)(a) and (b). Exemptions are provided for in s 3 of the Act.

27. Smoking, Health and Social Care (Scotland) Act 2005, s 4(2).

28. Ibid, s 4(4). See also the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006, SSI 2006/90.

29. For details of European countries which have imposed a smoking ban, see the website of the European Public Health Alliance, available at http://www.epha.org/a/1941.

30. Scottish Parliament, Official Report, 28 April 2005, col 16520 per Rhona Brankin MSP.

31. Ibid, col 16521 (emphasis added).

32. Ibid (emphasis added).

33. Ibid, col 16474.

34. Ibid, col 16499.

35. Ibid, col 16507.

36. Hansard HC Deb, col 217, 29 November 2005 per Richard Taylor MP.

37. Hansard HC Deb, col 180, 25 November 2005 per Tim Farron.

38. The relationship between addiction and autonomy is discussed further below.

39. Hansard HC Deb, col 188, 25 November 2005.

40. Ibid, col 189 (emphasis added).

41. Royal College of Physicians Going Smoke Free: The Medical Case for Clean Air in the Home, at Work and in Public Places (London: RCP, 2005) p xiii.Google ScholarPubMed

42. Ibid, preface.

43. See the website available at http://www.ash.org.uk.

44. Office of National Statistics Smoking Related Behaviour and Attitudes 2002 (London: ONS, 2003)Google ScholarPubMed

45. Fitchenberg, CM and Glantz, SA ‘Effect of smoke free workplaces on smoking behaviour: systematic review’ (2002) 325 British Medical Journal 188 CrossRefGoogle Scholar. This view was echoed in Royal College of Physicians Tobacco Smoke Pollution: The Hard Facts (London: RCP, 2003)Google Scholar. Prior to the ban, the Royal College of Physicians estimated ‘that if all UK workplaces and public places that currently permit smoking were to become completely smokefree, at least 320,000 current smokers would quit’ (p 11).

46. Husak, above n 3, p 151.

47. Ibid, p 152.

48. Ibid. Even if their jail terms included educational programmes, designed to help offenders to stop smoking, the potential benefits of such a regime would not outweigh the harm to autonomy caused by the state in depriving smokers of their liberty by incarceration.

49. Under the Scottish legislation, the maximum penalty for smoking in no smoking premises is a fine at level 3 on the standard scale (currently £1000): Smoking, Health and Social Care (Scotland) Act 2005, s 2(3). The English legislation allows the Secretary of State to set the appropriate fine level by way of regulation (Health Act 2006, s 7(6) and Sch 1). The Smoke Free (Penalties and Discounted Amounts) Regulations 2007, SI 2007/764 has set this at level 1 (£200). Other countries have adopted a different approach – in Jordan, eg, the penalty is a fine of 20 dinars (£19) or imprisonment (‘You can't ban smoking: it's a family pastime’The Week 29 May 2010 at 16).

50. Eg, on the first anniversary of the Scottish prohibition, it was reported that 70% of people supported the smoking ban: see the website available at http://www.scotland.gov.uk/News/Releases/2007/03/23130308.

51. I have specifically referred to ‘drivers’, rather than ‘passengers’, because one argument for the compulsory use of seat belts for passengers seated in the rear of vehicles is that failure to wear a seat belt endangers the lives of those sitting at the front of the vehicle.

52. See, eg, Feinberg, above n 11, pp 137–138.

53. Schonsheck, J On Criminalization: An Essay in the Philosophy of the Criminal Law (London: Kluwer, 1994) p 107 (original emphasis).CrossRefGoogle ScholarSee also Feinberg Harm to Self, above n 11, p 136.

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55. Perhaps the distress is felt to be too remote? But the criminal law does offer protection from quite remote harms, at times. For instance, I may not carry a 5 inch penknife in my rucksack, to safeguard against the remote possibility that I may use the knife to injure someone (see the Criminal Justice Act 1988, s 139 (for England, Wales & Northern Ireland), and the Criminal Law (Consolidation) (Scotland) Act 1995, s 49).

56. Schonsheck, above n 53, p 115.

57. Feinberg, above n 11, p 140 (original emphasis). See also Schonsheck, above n 53, p 141: ‘The liberal is not compelled by consistency to abandon victims in the street. The liberal can wholeheartedly support the care of victims; insurance programs can be implemented to indemnify other motorists, and the state’.

58. See Duff, RA Answering for Crime (Oxford: Hart, 2007) pp 173–174 Google Scholar, where it is argued that breaches of regulations which ‘serve the common good’ are breaches ‘of our civic responsibilities...which merit condemnation as wrongs’.

59. Above n 5, pp 67–68. See also Ogus, A ‘The paradoxes of legal paternalism’ (2010) 30 Legal Studies 61 at 68: ‘...people often attribute an excessively high value to short term benefits and too low a value to longer term costs’.CrossRefGoogle Scholar

60. Ibid, at 67.

61. Buchanan, J ‘Afraid to be free: dependency as desideratum’ (2005) 124 Public Choice 19.CrossRefGoogle Scholar

62. Ibid, at 23.

63. Ibid, at 24.

64. Feinberg, above n 11, p 4.

65. See Kadish, S ‘The use of the criminal sanction in enforcing economic regulations’ in Kadish, S Blame and Punishment: Essays in the Criminal Law (New York: Macmillan, 1987) p 51 Google Scholar. See also von Hirsch, above n 4, at 27–28. Furthermore, the creation of too many mala prohibita offences may result in a great many people breaching the law, such that this becomes commonplace, and this may cause a loss of respect for the criminal law in general: Husak, above n 3, p 12. See also Packer, H The Limits of the Criminal Sanction(Stanford: Stanford University Press, 1968) p 359.Google Scholar

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69. Royal College of Physicians, above n 41, p xvii.

70. For an argument that a risk which does not actually cause harm is nonetheless a harm in itself, see Finkelstein, C ‘Is risk a harm?’ (2003) 151 University of Pennsylvania Law Review 963.CrossRefGoogle Scholar

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72. Paternalism has a role here: the fact that smoking is harmful to the smoker is an important basis for our judgement that it is not a valuable activity.

73. Section 87(1) of the Environmental Protection Act 1990 provides: ‘If any person throws down, drops or otherwise deposits in, into or from any place to which this section applies, and leaves, any thing whatsoever in such circumstances as to cause, or contribute to, or tend to lead to, the defacement by litter of any place to which this section applies, he shall...be guilty of an offence’.

74. See s 1(1) of the Clean Air Act 1993: ‘Dark smoke shall not be emitted from a chimney of any building, and if, on any day, dark smoke is so emitted, the occupier of the building shall be guilty of an offence’. The 2005 and 2006 anti smoking prohibitions may be viewed as a further measure to tackle air pollution, thus enhancing people's right to clean air in public spaces.

75. Smoking, Health and Social Care (Scotland) Act 2005, s 2(2), and Health Act 2006, s 7(4).

76. Husak, above n 3, p 137.

77. The fact that in the UK the NHS meets the bill for smoking related illnesses provides an additional reason for suggesting that there is a substantial state interest in such legislation, but the state's primary interest lies in the fact that the criminal law serves to protect citizens against harm – Husak himself notes that ‘the prevention of physical harm will qualify as compelling and, a fortiori, as substantial’: ibid, p 138.

78. Ibid, p 153.

79. Royal College of Physicians, above n 45, p 10.

80. Royal College of Physicians, above n 41, p 23.

81. Ibid, p xiv.

82. See ‘“Third hand smoke” could damage health’BBC News 9 February 2010, available at http://news.bbc.co.uk/1/hi/health/8503870.stm. The news report was based on M Sleiman et al ‘Formation of carcinogens indoors by surface mediated reactions of nicotine with nitrous acid, leading to potential thirdhand smoke hazards’Proceedings of the National Academy of Sciences (2010), available at http://www.pnas.org/content/107/15/6576.full.pdf+html.

83. It might be suggested that the prohibition should be extended to criminalise smoking at home in the presence of any non smoking third party, but adult non smokers could generally choose to leave the smoke filled environment, an option which the smoker's children do not have.

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88. Royal College of Physicians, above n 45, p 8.

89. Taxation of cigarettes led to an increase in price from £1.85 per packet in 1971 to £2.65 in 1995. This caused a per capita decrease in smoking from 15,000 to 10,000 cigarettes per annum: ‘Global pleas to raise smoking taxes’BBC News 9 August 2000, available at http://news.bbc.co.uk/1/hi/health/871951.stm. The current cost of a packet of 20 cigarettes is about £4.80.

90. See, eg, Husak, above n 3, p vi.

91. For England: Smoke free (Penalties and Discounted Amounts) Regulations 2007, SI 2007/764, reg 2(5). For Scotland: Prohibition of Smoking in Certain Premises (Scotland) Regulations, SSI 2006/90, reg 4(2)(b).

92. Section 1.04 of the American Model Penal Code. German law distinguishes between ‘Straftaten’ (crimes) and ‘Ordnungswidrigkeiten’ (violations). See Kadish, above n 65, pp 59–61. For an argument, in the American context, that there should be an increased use of civil sanctions, see K Mann ‘Punitive civil sanctions: the middleground between criminal and civil law’ (1991–2) 101 Harvard LR 1795. For a critique of this approach, see JC Coffee ‘Paradigms lost: the blurring of the criminal and civil law models – and what can be done about it’ (1991–2) 101 Harvard LJ 1875.

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95. Crime and Disorder Act 1998, s 1(1).

96. In Clingham v Royal Borough of Kensington and Chelsea; R (on behalf of McCann) v Crown Court of Manchester[2002] UKHL 39, [2003] 1 AC 787, the House of Lords determined that the making of an anti social behaviour order was indeed a civil procedure but that the conduct leading to the ASBO should be proved beyond reasonable doubt.

97. Crime and Disorder Act 1998, ss 8 and 9, as amended by the Anti social Behaviour Act 2003 and Criminal Justice Act 2003.

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108. N Morris ‘Blair's “frenzied law making” has created a new offence for every day spent in office’The Independent 16 August 2006 p 2, cited in Chalmers, J and Leverick, F ‘Fair labelling in criminal law’ (2008) 71 MLR 217 at 217.CrossRefGoogle Scholar

109. As Persak has pointed out: ‘To propose a new incrimination is...the cheapest, quickest, most memorable, and media inviting act the Member of Parliament can do – the most efficient for a legislator (securing re election) and the least truly efficient ie problem solving’: above n 13, p 27).

110. Dripps, above n 13, at 11.

111. Ibid, at 12.

112. Ibid.

113. Mill, above n 6, p 9.