Briain Jansen On The “Thin Ice Principle” or “In Dubio Pro Abstine” in Criminal Law: Why does “Strict Construction” in Criminal Law Not Always Apply?

The widely accepted doctrine of strict construction in criminal law holds that uncertainties about the meaning of the law should be resolved in favor of the defendant. It is incoherent to expect an agent to abide by uncertain law, and arbitrary to punish him for not having done so. Nevertheless, case law, i.e. the case of C.R. v UK and the Dutch ‘mensenroof’-case, suggests that the status of the principle of strict construction is all but certain as a guide in adjudication.
This paper follows Loth in defending the thesis that the risk of conviction sometimes legitimately falls upon legal subjects who do not abstain from actions of which the criminality is uncertain (the principle of in dubio pro abstine or the thin ice principle). I submit, firstly, that in cases of uncertainty about law legal subjects may have fair warning about the possibility of criminal enforcement. Secondly, the main justifying aim of criminal law to deter crime benefits from the integrity of legal subjects, which I submit is discouraged by the application of the principle of strict construction. The paper concludes with a short discussion of some possible exceptions to the applicability of the “thin ice principle”, such as cases of conflicting civil rights.