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Summary - Criminal Law (LA104)
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Complete study notes covering each week of the criminal law course at the university of Warwick.
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Criminal Law notesWeek 1 – criminal justice
The problem of crime is inextricably linked to the social need for justice.
Punishment:
• Criminal law and punishment are two sides of the same coin
• Punishment is what gives criminal law its distinctive character - sets it apart from other
forms of law such as tort (damages vs prison for example)
• Threat of punishment is implied with every criminal offence: the main character of criminal
sanction is punitive - supposed to serve as punishment
• Criminalisation is sometimes thought of as
What is punishment - there are some characteristics commonly ascribed to punishment and its
institutional role within criminal justice:
• Must involve an infliction of unpleasantness upon its target
• Must be inflicted for an offence
• It must be of an offender
• It must be imposed by an authority linked to the institutions against the rules of which the
offence has been committed - usually a judicial authority
• It must be intentional, not accidental or coincidental
• However in practice people are criminalised even without an admission of guilt
• The criminal trial is sometimes merely a formality
Determining the correct punishment for a crime:
• Our perception of the correct punishment of a crime tends to vary
• The fact that someone has committed a crime in the past, that should not affect future
convictions - they may have already been rehabilitated in light of the current criminal justice
system
• In reality once convicted once, it is notoriously difficult to escape this shadow
The practice of punishment:
• Each criminal offence provides the type of punishment and the maximum available
• Only exceptionally will a criminal offence have a fixed penalty (murder for example - life)
The problems: different judges may have different justifications meaning that there are inherent
disparities in punishment for similar crimes, and also not do enough to avoid punitive punishment
(excessive punishment)
Sentencing regulations:
• Attorney general can refer to CA a high court sentence against an indictable only offence
they consider too lenient
• Sentencing guidelines can be provided for specific offences - they have been issued for the
most core criminal offences
Purpose of punishment
Justifications:
What should it do? Vs What does it actually do?
• Consequentialist justification: deterrence (rational dissuasion against crime) , incapacitation
(including electronic tag) and rehab
• Forward looking: seeks to primarily reduce future crime
Deontological justifications (retributivists):
• Punishment is demanded by moral agency; punishment is what the wrongdoer deserves
Purpose: (Under the Criminal Justice Act 2003
, • Punishment of offenders
• Reduction of crime through deterrence
• Reform and rehab of offenders
• Protection of public security
• The making of reparation for those affected by the offender
Problems with the justifications?
• Deterrence: if rational, not convincing? If practical, not efficient?
• Rehab: can punishment really rehabilitate a person? Is it too lenient to be punitive?
• Incapacitation (has been deemed too harsh in some spheres - what about individual
autonomy
• Retribution: quantum of punishment? Does it ignore need for prevention and does it open
the door to punitiveness - mainly centred on old notions of vengeance
Mathieson, Prison on Trial: none of the justifications work
Can these justifications fit together?: within the sentencing framework we have these justifications
however none of them work fully alone. They cannot be morally supported as standalone concepts
but may have support when looked at concurrently
Why are we punishing if it has never been fully justified?: social (social solidarity), economic
(shortage of labour - 17th century epoch), political (propaganda) or emotional motives (revenge)
Why are we punishing so much?: the prison is used today as a kind of reservation, a quarantine zone
in which purportedly dangerous individuals are segregated in the name of public safety.. Large scale
incarceration functions as a mode of economic and social placement.
Because of ontological insecurity there are repeated attempts to create a secure base. That is to
reassert one's values as moral absolutes, to be rigid rather than flexible in ones judgements to be
punitive and excluding rather than permeable and assimilative
Independent of the main justification, we often link its delivery with the pursuit of justice - link taken
for granted so that punishment not only appears naturally justified but also necessary
The influence of punishment on the criminal law is very strong and it its social effects are
problematic - It is important to at least consider pursuing alternative forms of justice
Week 2 – criminal justice continued
Criminal justice is much broader than the criminal law, formed by several institutions, such as:
• The police
• Courts and its different agents
• Prison system
• Probation system
• Other government agencies may also participate in criminal enforcement: e.g. HM revenue
and customs
There are tensions between due process and crime control:
Due process:
• Focus on individual rights
• Central element: criminal trial
, • Highest principles: presumption of innocence and judicial fairness
Crime control:
• Focus on prevention and public protection
• Central element: law enforcement (police etc.)
• Main aims: efficiency and control of dangerousness
Rethinking justice beyond punishment:
Restorative justice:
• Focus on shame rather than blame
• Engagement between the offender, the victim and the community
• Generally adopted as subsidiary to criminal justice
Transformative justice:
• Transforming the way communities and their members relate to crime
• Aimed at changing the perceptions and conditions of wrongdoing
• Grassroots approach - usually in small communities which tend to be more coherent when
implementing this sort of system
Social justice:
• Structural change: economic, political, social etc. - exemplified by the 'me too' movement
which is working against sexual harassment
Criminal Justice: it is mainly used as a subsidiary in society in current day society
• Victims are also neglected in the current day criminal justice system - very little opportunity
to represent themselves meaningfully in a criminal trial
Criminal trial:
• England and Wales there is an adversarial trial:
• Defence and prosecution should have parity of arms - both should be on an even playing
field to provide their case and whichever better does so or to the standard required to by
the law will wing the trial, judge has a less prominent role in the process
Two forms of criminal trial:
• summary - conducted by law magistrates who are assisted by clerk of court, or by district
judge. Maximum sentence at magistrates: 12 months (or 6 months for only one offence)
• Trial on indictment - trial conducted by a crown court with judge and jury
• Division of labour - judges decide on matters of law while matters of fact are decided by
magistrates and the jury
CPS:
• prosecutors have prosecutorial discretion - can decide whether or not they want to
prosecute
• The prosecution has to pass the full test which includes the evidential stage and the public
interest stage
• Prosecutors can assist but not direct police investigations
Of the cases that are actually tried, the majority ends in convictions, although the proportion of
acquittals after trials is significant
Sources of criminal law:
Statute: a great majority of criminal offences today are statutory, however statutory offences are
open to interpretation: courts have to interpret ambiguities
Case law: used to gain greater clarity over the criminal law, and a few offences remain common law
offences such as murder and manslaughter which have to be defined through case law
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