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Understanding Criminal Law CMV Clarkson Fourth EditionTable of Contents
Introduction 2
Nature and development of criminal law 2
Punishment and sentencing 3
Constructing Criminal Liability 3
Introduction 3
Values 3
Communicating the values: fair labelling 3
General principles of criminal liability 4
Conduct 6
Necessity for conduct 6
Extent of conduct 7
Attempt 7
Conspiracy 8
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Introduction
Nature and development of criminal law
- Criminal law: a body of rules listing the various criminal offences, identifying the ingredients thereof (including common
elements such as general defences) and specifying the potential punishment.
- The only remedy in primitive law for offences such as homicide, wounding, rape, theft, etc, was self-help. As society
developed, self-help was replaced by a system of enforced payment of compensation. The harmed victim was entitled to
compensation from the wrongdoer. Such offences were thus not perceived as public wrongs affecting society as a whole.
Only the victim or his or her kindred had sustained a loss and was entitled to have this loss made good.
- However, it was later realised that such wrongdoing had implications beyond the simple harm sustained by the victim.
- A crime is a public wrong in the sense that the public at large is affected by it.
- E.g. Crime of rape:
- This harms more than just the victim, as society is threatened and is made less secure by the rape
(knowing that there is a possibility that the rapist could strike again). Accordingly, society is not prepared
to leave the matter to the victim to seek compensation.
- Culpability: blameworthiness.
- The present distinction between murder and manslaughter is based very largely on the different degrees of blame
attached to the defendant.
- A proper judgment of their moral guilt necessitated an exploration of their state of mind. Emphasis began to be
placed on the mental element in crime (the concept of mens rea began to develop in English criminal law).
- Once the concept of blame or culpability was established in the law, it was inevitable that sooner or later the
broad offences would be subdivided so as to reflect the different degrees of blame involved.
- Homicide is divided into two main categories: the division is based primarily on the presence of absence of
“malice aforethought”—an indicator of a special degree of blame.
- Malice aforethought: the element of mens rea in the crime of murder. It includes the intention to kill a
person, and it is immaterial whether there was in mind either no particular person or a different person
from the one killed. It also includes an intention to do an act likely to kill from which death results.
- Criminal offence distinctions:
i. Distinction between serious arrestable, arrestable, and non-arrestable offences (Police and Criminal Evidence Act
1984).
- The distinction refers to the power given to the police to arrest offenders without a warrant and to powers to
detain them for an extended period of time.
ii. Crimes are classified as being summary offences, indictable offences, or offences triable either way (criminal Law Act
1977).
- A summary offence: one that must be tried by a magistrates’ court; there is no jury in such courts.
- An indictable offence: one that must be tried in the Crown Court where the trial is by jury.
- An offence triable either way: one that allows magistrates to try the case if they feel that is appropriate and if the
defendant agrees.
- Criminal proceedings differ in several respects from civil proceedings.
- While any citizen can bring a criminal prosecution, it is normally handled by the police and the Crown
Prosecution Service.
- Generally, there is no time limit for criminal proceedings.
- The procedure, rules of evidence, and rights of appeal are very different from civil proceedings.
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