The field of action regarded as and eventually legally classified as criminal has been expanding for some time in Britain, though the history of this has yet to be written in detail and is poorly understood. Indeed, for most of the population, the facts of the matter are obscured by the prominent historical decriminalisation of acts such as the stealing of game animals or firewood, to say nothing of more recent and continuing sexual reforms. In spite of these highly salient and much publicised cases the net trend, both in numbers of regulations supported by criminal sanctions and in the proportion of the population potentially caught within their net, has undoubtedly been growing, and is now causing concern, and the creation of hate crimes of various kinds, for example, has become a topic of comment in the media (Editorial, "The Creeping Criminalisation of Causing Offence", Spectator 27 February 2021).
I have myself recently published an extended and technical discussion of the expansive criminalisation of breaches of the regulations created under the aegis of the Companies Act of 2006, itself an important stage in this record of progressive criminalisation: John Constable, A Little Nudge with A Big Stick: Misreporting Energy and Emissions is now a Crime in the UK.
However, the public has only the faintest sense of the logic underlying such changes, and indeed most would assume that reassignment was grounded in an estimation of the severity of the offence, a thoroughly nebulous conception the weakness of which is revealed by the way that attempts to cast the matter in moral terms run either into verbal clumsiness, "wrongness", "worseness", "badness", or the obvious exaggeration and irrelevance of terms such as "evil" or "malicious".
As it happens, the rational machinery behind the movement of infractions from one category to another lies in a legal distinction that is for all its faults very clear: Civil law regulates conflicts between private interests, while the criminal law regulates conflicts between private and public interests, with public interests represented by Leviathan, by the Crown.
Thus, the creation of a criminal offence presumes and relies on the engagement of the public interest.
Consequently, it follows that in a society which is manifestly undergoing a pronounced collectivist shift, such as our own, it is inevitable or at least highly likely that there will be a corresponding expansion of criminal offences.
Taking an alternative analytic perspective, if there is an expansion in criminal offences one might infer a collectivist shift, if that were not obvious in other ways. One benefit of that taking that perspective is that alternative reasons for an expansion of criminal legislation suggest themselves. For example, subsections of the population may succeed in using political pressure to pass laws representing their own private interest as that of the public, and therefore securing criminal sanctions to hamper their competitors. Indeed, it is to be suspected that much asserted public interest is nothing of the kind, and that collectivist shifts are nearly always driven by an increase in the frequency with which private interests conflict. Such matters should, of course, be addressed by civil law, but due to the pressure and intensity of those private conflicts, and the low priority given to civil cases in a justice system that is already overloaded, it is very likely that individuals will, and not necessarily with any but good intentions, misrepresent their own interests as those of the public and to be policed as such.
That there is in reality a rising trend in conflicts of private interest in Britain remains to the demonstrated, but it seems very probable since the population is rising while the available economic niche, which consists of much more than mere land area, is not expanding as fast and may even be contracting. For evidence I would point to the increase in what used to be called moral exhibitionism and is now more accurately referred to as “virtue-signalling”, which is to say self-denial signalling, virtue having no other tenable definition but that of the rigorists. The fact that this ostensive puritanism is often without substance proves the point. We are, as a population, very concerned to create a moral atmosphere in which the free action of others is severely inhibited, yet these are rules to be applied with rigidity to our neighbours but great tenderness to ourselves.
As further confirmation, one might refer to cultural evidence. Zombie films present the surrounding population as not only absolutely hostile but also, because they are dead, free of that moral protection afforded by the sanctity of life. – Zombies can be destroyed with complete justification and without guilt. Still more prevalent and revealing is the demonisation of the individual as a figure of extreme and often ultimate evil, for which the Sith in Star Wars and Voldemort in Harry Potter are perhaps the key examples, though such things are commonplace.
Thus, pressure to increase the number of criminal offences may not represent, as some progressives would suppose, the result of a growing awareness of moral faults hitherto unrecognised, and a wider public interest so far unappreciated, of which the agitation around climate change would be a good example, but is rather an index of increasing societal fragmentation and interpersonal dissonance.