Offence is in the eye of the beholder

Criminal law is one of the first subjects many law students study. They are spoiled for choice in the textbooks on offer. In this review five will be discussed.

For a generation of students, Smith and Hogan Criminal Law has been the bible of criminal law. The book was first published in 1965 and is now in its 11th edition, although sadly it is now prefaced "in memory of J.C. Smith and Brian Hogan" and is under the authorship of David Ormerod.

Nowadays it faces a wider range of competitors than it did in the past, but there is no criminal law textbook like it. Its detailed discussion of every offence from necrophilia to bomb hoaxes is without comparison. A student can be confident that if an offence is not discussed in Smith and Hogan Criminal Law it is not likely to appear in an exam.

It must be admitted that in recent times the book has had its critics. There are those who decried its strong line in favour of subjectivism. Furthermore, although it was replete with detail on the law, it discussed the theoretical issues behind the case law and the extensive academic literature in much less detail than other books did.

To some this is a benefit: law students are meant to learn what the courts say the law is and need not be overly troubled with the "insights" of philosophers or jurisprudents. But an increasing number of criminal law lecturers believe students need to be asking why the law is the way it is and what are the moral principles that might be said to underpin the law.

Only then is it possible to understand the tensions that produce conflicting cases and reasons why some cases are difficult. To them, Smith and Hogan Criminal Law will be lacking in theoretical material.

It is true that this latest edition has taken steps to meet the complaints that have been made. There is now a bibliography of academic writings, and footnotes refer to relevant articles. Indeed, the book is not as stridently pro-subjectivism as it was under Smith. This is most apparent in the coverage of the House of Lords' decision in R v. G, which repealed the decision of R v. Caldwell. Smith's loathing of Caldwell was well documented, and (as Ormerod acknowledges in the preface) he would have been thrilled with the decision in R v. G. In the current edition, the discussion of G is rather more circumspect, and the expression of any delight is very much moderated.

It might be thought too much of a good thing, but a student buying the Smith and Hogan textbook can buy as an accompaniment the Smith and Hogan cases and materials book. This is a collection of extracts from the leading cases and some academic commentary.

Traditionally, such a book has been useful in saving students trips to the library to locate and read the cases in full. Nowadays, with case law so readily available on the web, the usefulness of such a book may be questioned. Especially where, as here, the extracts are from familiar sources the student will readily find in their library or on an electronic database. That said, the extracts selected are well chosen and direct the reader to the key passages in the relevant case law. Some of the extracts are rather long - one I noticed covered 15 pages - and that may be intimidating to the student who is trying to use a cases and material book to avoid having to read the case in full.

As an alternative, Mike Molan has produced a useful cases and materials book. This also extracts selected passages from the leading cases. In this book the emphasis is on providing students with the material from the key cases, statutes and Law Commission reports. The author has provided a few brief comments about the offences, although in many instances it is left to the reader to discover the law through considering the extracts. The book does have some stimulating questions at appropriate points throughout the text. There are only a few extracts from academic commentary, although a list of extra reading at the end of each chapter can direct the interested reader to articles and books that may be of interest. Molan's book is of most use to a student who does not have access to a law library or electronic resources.

Michael Jefferson's Criminal Law provides a good introduction to the subject. It is written in an accessible style and provides a clear statement of the law. More than this, it indicates some of the key criticisms of the law and introduces a few theoretical ideas. In a particularly useful way, he sets out some of the main arguments on either side of controversial issues. Such material will, no doubt, be seized upon by students when they attempt to write essays.

The book grabs the readers' attention by showing the contemporary significance of criminal offences and defences. For example, in the introduction to his section on necessity, Jefferson writes: "If terrorists aim a plane at Canary Wharf in London, may the Army shoot it down?"

Students are likely to find this a readable and enjoyable text. It does not delve into the more sophisticated academic writing, and the best students will need to supplement the book with further reading. There are a few areas where the analysis is a little brief, particularly in relation to the law on rape following the Sexual Offences Act 2003.

For the law lecturer already familiar with the law, perhaps Chris Clarkson's Understanding Criminal Law will provide the most stimulating read. This book does not seek to give the reader a detailed exposition of the law. There are no long paragraphs examining the meaning of complex provisions of legislation. Rather, Clarkson is interested in the ideas and principles behind criminal law. We need to know, he suggests, not only what the law is, but why the law is the way it is and what theoretical conflicts have shaped it.

More than any of the other books discussed in this review, he looks at issues about how the criminal law assesses blameworthiness and how the law decides what is a crime. This is also the only one of the five that has any detailed discussion of feminist perspectives on criminal law. It is a useful book for a student who has understood the basic points of criminal law but wants to think more deeply about some of the issues raised. Or it can perhaps be used as a book to read before embarking on law studies. Its short length means it is not a daunting read and will leave the reader excited about finding out more.

All these books reveal what an interesting subject criminal law is and demonstrate the variety of ways in which it can be studied. It raises questions from the philosophical to the sociological to traditional black-letter law. Anyone embarking on the study of criminal law is in for an interesting time.

Jonathan Herring is fellow in law, Exeter College, Oxford.