Being Drunk in Public: What's the Harm?

Abstract

In 2009 in the context of the New Zealand Law Commission’s review of the Sale of Liquor Act 1989 the Commission asked submitters to consider whether being drunk in a public place should be an infringement offence. While the Commission did not recommend the Government enact such an offence, the question was asked amid perceptions of increased resort by governments to criminal sanctions. While enactment of criminal offences is politically contingent, this paper considers the principles that apply to questions of criminalisation, using the proposed offence as an analytical tool. It focuses particularly on remote harms and the circumstances in which culpability for the ultimate harm may be fairly imputed to the innocent actor. It considers also the scope of the offence principle in the context of the proposed offence. This paper argues that neither the harm nor offence principles may stretch so as to accommodate the proposed offence, but that legal moralism might provide an honest explanation if it were to be criminalised. Finally, this paper concludes that if criminalisation of being drunk in public could be justified in principle there are compelling reasons why an infringement offence would not be appropriate and why another criminal offence would be unnecessary.