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Summary Criminal Law Lecture notes
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Summary of 57 pages for the course Criminal Law at LE (Lecture notes)
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Criminalisation and PunishmentA Purpose of Criminal Law
The function of the criminal law is to lay down a set of standards of what is
permissible and what is not – method of social control, framework specifying the
parameters of acceptable behaviour. Criminal law has its own series of rules,
with its own setoff sanction which are aimed at controlling behaviour
B. Basis for Criminalising Conduct
On what basis and according to what criteria is conduct criminalised?
1. Conduct must be wrongful – no criteria on determining wrongfulness.
3 philosophical perspectives
(i) Legal Moralism – Conduct is wrongful if it is immoral. (Felt disgust then it
would be criminal – bonds of toleration are being reached). Immoral conduct
is something that offends against the community spirit.
Brown [1993] 2 All ER 75 – HOL had to decide whether consent to sado-
masochistic acts could be a defence to assault ABH (s.47 OAPA 1861).
Majority of 3 to 2 = consent was no defence to such charges as there was
an absence of good reason. Lord Templeman (majority) said: “society is
entitled’ and bond to protect itself against a cult of violence. Pleasure
derived from the infliction of pain is an evil thing, Cruelty is uncivilised”.
Lord Lowry (majority) said: “Sado-masochistic homosexual activity cannot
be regarded as conductive to the enhancement or enjoyment of family life
or conductive to the welfare of society.
Devlin’s “The Enforcement of Morals” (1965): Immoral if it brings disgust.
Immorality for the purposes of law = what a right minded person is
presumed to consider immoral. Any immorality is capable of affecting
society injuriously and in effect to a greater or lesser extent it usually
does: which is what gives the law locus standi – cannot be shut out. BUT
the individual has locus standi where he cannot be expected to surrender
to the judgement of society. There has to be a balance between the rights
and interests of society and those of the individual. There must be
toleration of the maximum individual freedom that is consistent with the
integrity of society. Immoral then it is a danger to society – damages the
fabric of society. Tolerate just to a point. Disgust can rise from prejudice
(may not understand something).
Wilson, “Is Hurting People Wrong?” [1992] 16 OJLS 433: Immoral = the
autonomy of being trumped where the activity is against the public
interest. Even a tolerant pluralistic society must enforce the fundamental
moral value that hurting people is wrong.
(ii) Liberalism – Conduct is wrongful if it causes harm or serious offence to
others (harm principle). Respect must be shown to the principle of
individual autonomy – people possess free will and must be allowed to the
max extent possible to make free choices. The state should only intervene
to restrict autonomy when it is necessary to preet harm or serious offence
to others
J.S. Mill’s Harm Principle: “The only purpose for which power can rightfully
be exercised over any member of a civilised community against his will is
to prevent harm to others… His own good either physical or moral is not
sufficient warrant.”
What is harm? J.Kaplan- Primary harm – involving direct harm to others;
Secondary harm – involving indirect harm to others – criticism of this
, concept is that it doesn’t provide us the basis for making decisions as to
whether to criminalise conduct.
Criticism of harm = what is the correct definition?
Feinberg: minor or trivial harms are harms despite their minor magnitude
and triviality, but below a certain threshold they are not to count as
harms for the purposes of the harm principle, for legal interference with
trivia is likely to cause more harm than it prevents.
Expanded this to cover offence – context of offensiveness, seriousness of
the offence caused to unwilling witnesses against the reasonableness of
the offenders conduct. Harm other than the actor that we are helping
here and there is no other alternative
Probably a good idea to use the criminal law to prevent serious offence
but needs to be effective. Not all invasion of interests are wrong as some
are justifiable or excused. E.g. taxed paying on earning but there are
good reason for that as it is justifiable by the government & harm that
has been consented to then the other party wanted them to do it. Offence
principle – can only be criminalised if it happens in public.
(iii)Paternalism –
Allows the criminal law to be used to protect a person from harm to
themselves. Law in this instance is entitled to interfere with a persons’
autonomy for their own good and enhance their welfare. E.g. if it was
established that consuming certain drugs was harmful to the person
concerned, the paternalist would criminalise the sale an possession of
such drugs. Only interested in enhancing the interests the person actual
has and not protecting the interests that they ought to have. Conduct is
wrongful if it causes harm to others or the actor
Criticisms of this view – Law Commission, Consent in the Criminal law
(Consultation paper 1995) – many of us make life style choices which
don’t promote our immediate or long terms interests e.g. smoking. A
balanced, healthy diet and regular exercise would be in everyone’s
interests- paternalist has a reason for criminalising fatty food. Risk taking
without good reason would also be ruled out e.g. skydiving= criminalised.
Hart: Individuals do not necessarily know their interests best. A range of
factors diminish the significance to be attached to an apparently free
choice or to consent.
Feinberg (liberalist): some prohibitions imposed under the paternalistic
rationale can be defended on liberal grounds as needed in the public
interest. For liberalists the only behaviours why may be criminalised are
those which harm or risk harm to persons toher than the actor.
Ferguson, “’Smoke gets in your eyes...’ the criminalisation of smoking …”
(2011) – Paternalism is defined as state intervention by laws designed to
protect persons from the negative consequences of their own behaviour
2. Must be necessary to employ the criminal law to condemn/prevent such
condemn – criminal law should be used as a last resort.
Packer: “Limits of Criminal Sanction” – first question in every case is/or
should be: how high is the probability that the preparatory conduct, if not
inhibited by the threat of criminal punishment, will result in an ultimate
harm o that sort that the law should try and prevent? Packer identifies 4
conditions that need to be taken into account when making the ultimate
decision about criminalisation:
a. Conduct is prominent in most people’s view of socially threatening
behaviour and is not condoned by any significant segment of society.
, b. Subjecting it to the criminal sanction is not consistant with the goals of
punishment.
c. Suppressing it will not inhibit socially desirable conduct.
d. It may not be dealt with through even-handed and non-discriminatory
enforcement.
e. Controlling it through the criminal process will not expose that process to
severe qualitative or quantitative strains
f. There are no reasonable alternatives to the criminal sanction for dealing
with it
Brown –was it appropriate for the criminal law to get involved? Majority
felt that the public interest took over the point of ABH. Consent can only
operate as a defence to a narrow range of activities involving harm.
(listen to lecture)
• However we define “wrongdoing” we must consider whether the criminal
law should be used to prevent it.
• Is it necessary to employ the criminal law?
• Is the harm too remote?
• Can the law be enforced?
• Alternatives to the criminal sanction?
• Dangers of overcriminalisation
• Compliance with ECHR
3. Since 2000 – there has been a third condition = must be permissible to
criminalise the activity – must not contravene with the European Convention
on HR (HRA 1998).
E.g. Article 8 – respect for private life; Article 14 – non-discrimination –
has been contravention to have different ages of consent for
heterosexuals and homosexuals. This led the English law rendering the
age of consent the same for all persons.
Under the HRA 1998 – courts are obliged to interpret all legislation “so far
as it is possible to do so” in a manner that is compatible with Convention
rights.
Chambers v DPP [2012] EWHC 2157 Admin; [2013] 1 Cr App R 1 -
C. Punishment
What is the relevance of punishment to the substantive criminal law?
Why, how and to what extent do we punish?
Consider main features in sentencing from the Criminal Justice Act 1991 to
the Criminal Justice Act 2003 and the Legal Aid, Sentencing and
Punishment of Offenders Act 2012. Consider, in particular, the role of
sentencing guidelines.
https://www.sentencingcouncil.org.uk/
Proposals for reform:
Law Commission No.365, A New Sentencing Code for England and Wales
Transition – Final Report and Recommendations (2016), plus Consultation
Paper No.232, The Sentencing Code, available at:
http://www.lawcom.gov.uk/project/sentencing-code/
Indictiable only way offences – CC00
, ACTUS REUS:
Introduction:
Each offence requires: AR (guilty act which causes harm) + MR (guilty mind
– getting inside the head of the defendant and shows blameworthiness) + -
defence (liable if there is no defence).
Correspondence principle: MR has to correspond to the AR for it to be fair
(Ashworth)
Another principle of fair labelling – each offence should be given a label that
communicates back to society what the defendant has done wrong (this
also relates to just desserts) (Ashworth).
Example: s.18 OAPA 1861 - Whosoever shall unlawfully(3) and
maliciously(2) by any means whatsoever wound or cause any grievous
bodily harm(1) to any person, with intent(2) … shall be guilty of an offence.
(Green = AR (1); Blue = MR (2); Red = lack of defence (3))
2 types of crimes:
1. Conduct crimes – external element required is the prohibited conduct
itself. E.g. Dangerous Driving – driving a mechanically propelled vehicle
on a road or other public place. No consequence of that dangerous
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