This document contains 18 summarised chapters with the most important information about criminal law assessments supported by the relevant cases. ( book Criminal law- Richard Card & Jill Molloy)
1. What is the definition of a crime and what are the different views concerning the purpose of criminal law?
Answer: The traditional definition of a crime would focus on ‘an act or omission or state of affairs which contravenes the law and which may be followed by a prosecution in criminal proceedings.
2.
Why and how did the Supreme Court in Jogee and Ruddock v Queen 2016 change the law concerning secondary party liability?
Answer: The court held that in order to prove accessorial liability, it was not sufficient to only prove the necessary mental element, but also the element of conduct. This could be discharged by proving that the accessory either assisted or at least encouraged the principal in committing the offence. The mental element is discharged by proving that the accessory intended to so assist or encourage the principal. The mental element however is not discharged by mere foresight that the principal might commit an offence.
3.
How is a fair trial established in the Criminal Justice System?
Answer: The golden thread prescribed by Viscount Sankey in Woolmington v DPP 1935 requires that the state has the burden of proof to prove liability and the standard for this is beyond reasonable doubt.
4.
How are crimes such as murder classified in terms of actus reus requirements?
Answer: Murder requires the initial conduct or omission (such a stab wound) but also requires death as a consequence of the stab wound. Therefore, without death there is no murder.
5.
How are crimes such as theft classified in terms of actus reus requirements?
Answer: Theft only requires the conduct of an appropriation (assuming the rights of ownership). There is no additional requirement. In other words you do not actually have to do anything with the property.
Content preview
Chapter 1
Substantive criminal law
The substantive criminal law: the law that determines what is or is not a crime.
Defining a crime
A crime may be defined as an act (or omission or a state of affairs) which contravenes the
law and which can be followed by prosecution in criminal proceedings with the attendant
consequence, following conviction, of punishment.
The functions of the criminal law
The main function of the criminal law is largely to set the parameters within which the
criminal justice system operates. There are two aspects to this.
First, the criminal justice system is a tool of social control representing the agglomeration of
powers, procedures, and sanctions which surround the criminal law. The police are
empowered to investigate crime, search for evidence, arrest suspected offenders, and
question them. The courts are empowered to try persons charged with committing crimes
and, if convicted, to sentence them. In setting the parameters within which this coercive It is
therefore crucial to define clearly what acts, omissions, or states of affairs amount to crimes:
all the other powers, procedures, and sanctions of the criminal justice system are dependent
upon these definitions. The criminal law, accordingly, limits and controls the legitimate
exercise by the State of its coercive power.
Secondly, the criminal law operates as a guide to the citizen indicating the limits of
legitimate behaviour and predicting the consequences of infraction of the criminal law. The
criminal law guides us in making decisions in life, by communicating to us the disapproval
and punishment that will result from particular paths we might choose, such as using
violence, possessing prohibited drugs, or driving at high speed on a motorway.
Criminal law and political populism
Why has the British Parliament been eager to expand the substantive criminal law and
deploy it so extensively? We can see the expansion of substantive criminal law as a series
of responses to immediate political pressures and sometimes to what criminologists call
‘moral panics’.
Legislation resulting from ‘moral panics’ can lack coherence and clarity. For example, the
Dangerous Dogs Act 1991 (DDA 1991) was a direct response to widely reported attacks by
particular breeds of dogs on young children, causing serious injury and in some cases death.
The Government enacted the DDA 1991 to address apparent public concern about these
attacks and made it a criminal offence amongst other things to own (without special
exemption) particular breeds of dog, or allow them to be in a public place without being
muzzled and kept on a lead. Since its introduction the legislation has been repeatedly
criticised for lacking clarity and coherence, mainly for being breed-specific in its focus rather
than addressing the dangerous behaviour of any dog, regardless of its breed.
,Each British political party tends to have particular views about the functions and appropriate
boundaries of the criminal law. Historically, the Conservative Party has tended to
emphasise the importance of ‘law and order’, bolstering police powers, toughening
punishments, and using the criminal law widely to respond to particular social issues. By
contrast the Labour Party has tended to focus on addressing social issues related to
criminality, such as unemployment, poverty, and education, rather than using the criminal
law and imprisonment as a blunt instrument to repress crime. These are broad-brush
statements of course, and both main parties have had periods when they adopted the
approach that is historically associated with the other. For example, the Conservative
Government in 1990 stated boldly in a White Paper that ‘prison can be an expensive way of
making bad people worse’ and legislated thereafter to restrict the use of harsh, deterrent
sentences. Before becoming Prime Minister, Tony Blair adopted a nowfamous slogan,
arguing that society needs to be ‘tough on crime, tough on the causes of crime’’.
The Liberal Democrats, rooting their policies in liberalism, tend to argue that the State
should not intervene in citizens’ lives any more than is necessary to prevent harm. For
example, they have called for a re-examination of the country’s approach to drugs
regulation, including the legalisation of cannabis possession for adults’ personal use and the
introduction of a regulated cannabis market.
The Green Party tend to advocate a reduction in the use of the criminal law and
punishment, arguing that restorative justice provides the best hope for dealing with the
causes and consequences of offending behaviour.
One example of the impact of shifting political priorities and philosophies even within a
government is the criminalisation of cannabis possession. Cannabis is a controlled drug
under s. 2 of the Misuse of Drugs Act 1971 and possession of it is an offence under s.
5 of that Act. There are three categories or classes of drugs (A, B, and C), the category
determining the maximum penalty that can be imposed (detailed in sch. 4 to the Act: seven
years’ imprisonment for class A, five years’ for class B, and two years’ for class C). Under
Tony Blair’s Government, cannabis was reclassified from a class B to a class C drug. When
Gordon Brown was Prime Minister, his personal views on ‘soft’ drugs led to reclassification
of cannabis from class C to a class B, thus increasing the maximum penalty that courts
could impose.
Social control and social morality
The criminal law is a series of prohibitions backed up with the threat of punishment. The
criminal law represents the rules of social control within a society.
The Wolfenden Committee, Report of the Committee on Homosexual Offences and
Prostitution (Cmnd 247, 1957) stated (at paras 13 and 14) that the functions of the
criminal law are:
to preserve public order and decency, to protect the citizen from what is offensive or
injurious and to provide sufficient safeguards against exploitation or corruption of others,
particularly those who are specially vulnerable because they are young, weak in body or
mind or inexperienced or in a state of special physical, official or economic dependence. It is
not … the function of the law to intervene in the private lives of citizens, or to seek to enforce
,any particular pattern of behaviour, further than is necessary to carry out the purposes we
have outlined.
To this extent the criminal law is a reflection of corporate or societal morality. The
wrongdoing which the criminal law seeks to punish is that which threatens the fundamental
values upon which a society is founded. While it is harmful to the individual to be robbed or
assaulted, it is also harmful as such behaviour threatens the security and well-being of
society as a whole. The criminal sanction operates then as a form of social control both
punishing the offender and reasserting society’s mores.
What conduct should be classified as criminal?
To determine what is immoral is far from straightforward. Ideas of what is immoral vary from
one society to another and from one generation to another. In any society, however, there is
a common core of morality which reflects standards of behaviour to which the majority of
citizens in that society conform, deviations from which will provoke censure. Many of these
rules of morality will be enforced by the criminal law, such as prohibitions on murder,
violence to the person, sexual assaults, and theft.
Not all rules of social morality, however, are subject to enforcement by the criminal law.
Adultery may be regarded by many as immoral but it is not a crime. Lying may be immoral
but it is not necessarily a crime. Similarly, many prohibitions of the criminal law are morally
neutral. There is no rule of social morality which dictates that the speed limit for vehicles in
built-up areas should be 30 mph, nor does social morality dictate that seatbelts should be
worn in vehicles or that persons under 18 should not be served alcohol in licensed premises.
These laws may be justified on the basis that they improve safety for, or prevent harm to,
citizens.
In Shaw v DPP [1962] AC 220, D was convicted of conspiracy to corrupt public
morals arising from his publication of the ‘Ladies Directory’ advertising the names and
addresses of prostitutes, together with photographs and details of the ‘services’ they were
prepared to offer.
The House of Lords upheld the conviction, Viscount Simonds stating (at p. 267): In the
sphere of the criminal law I entertain no doubt that there remains in the courts of law a
residual power to enforce the supreme and fundamental purpose of the law, to conserve not
only the safety and order but also the moral welfare of the State, and that it is their duty to
guard against attacks which may be the more insidious because they are novel and
unprepared for. (p.11 dissent judge comment)
Criminal law and punishment
What are the purposes of punishment?
Retribution A major purpose which punishment serves is retribution. Under retributive
theories, punishment is an end in itself. We do not need to look at the consequences of
punishment to know whether punishment is worthwhile or meaningful. There is an intuitive
connection between wrongdoing and State punishment. Punishment is meted out to the
offender because that is what he deserves for his infraction of the criminal law.
, Deterrence A second purpose which punishment can serve is deterrence, whether this be
particular deterrence (i.e. dissuading the individual criminal from reoffending in the future) or
general deterrence (i.e. dissuading other possible offenders from offending by the example
made of each particular offender).
Deterrence theory rests on key assumptions about human beings, in particular that
individuals are rational, carefully weighing the benefits and disadvantages of particular life
choices. Jeremy Bentham was a leading proponent of utilitarianism, the theory upon which
deterrence rests. He argued that ‘pain and pleasure … govern us in all we do, all we say, in
all we think.
What evidence is there that deterrence ‘works’ as a strategy? It is difficult to assess the
effectiveness of individual deterrence. Some offenders may never offend again even if they
are not caught or punished; others may only be deterred where the punishment imposed is
so severe that it is out of all proportion to the gravity of the wrongdoing. In relation to general
deterrence, courts, in the past, sometimes imposed exemplary sentences to deter others
where an offence had become prevalent or was particularly grave (see e.g. Wilson and Tutt
(1981) 3 Cr App R (S) 102; Poh and To [1982] Crim LR 132).
There is little evidence that simply increasing the severity of punishment will deter people
from offending, but there is evidence that increasing the perception of the likelihood of
getting caught will affect people’s decisions to offend.
Incapacitation
Incapacitation, like deterrence and rehabilitation, is a forward-looking approach to
punishment. Retribution is backwardlooking; we look backwards to the offender’s conduct
and punish him for that conduct, in proportion to the seriousness of the offence.
Incapacitation quite simply focuses on preventing the offender from committing offences in
the future. Incapacitation can mean imprisonment, most obviously. But it can take other
forms, such as capital punishment (no longer available in English law); disqualification from
driving (under the Road Traffic Offenders Act 1988); and football banning orders (under s.
14A of the Football Supporters Act 1989), which prevent persons convicted of football-
related offences from entering football grounds and travelling to football matches outside of
the United Kingdom. Each removes the offender’s ability to reoffend, permanently or
temporarily.
Incapacitation can be an appealing short-term solution that masks more complex problems
within our criminal justice system. Many of those in prison, and a significant number serving
IPPs, have mental disorders, personality disorders, and/or are on psychiatric medication.
There are significantly higher rates of mental health problems amongst prisoners than the
general population.
Rehabilitation
The pre-1960s penal debate was premised upon the idea of rehabilitation. Probation was
introduced as a disposal following conviction to give effect to this rehabilitative ideal. The
idea of rehabilitation even found expression in the Prison Rules 1964 which stated that ‘the
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