CRIMINAL LAW
INDEX
The Principles of Criminal Law Page 2
Actus Reus and Criminal Liability Page 6
Mens Rea and Strict Liability Page 11
Non-Fatal Offences Against the Person Page 19
Sexual Offences Page 25
Murder and Voluntary Manslaughter Page 32
Involuntary Manslaughter Page 38
Property Offences Page 45
Duress, Necessity, and Self Defence Page 64
Insanity, Automatism, and Intoxication Page 69
Secondary Parties Page 76
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,Criminal Law- Week 1
Required Reading: Discipline and punish; the birth of prison
Parricide- deliberate killing of your mum or dad
The Principles of Criminal Law
History of criminal law:
Historically criminal law was seen as a moral and retributive system, which slowly evolved
and become more progressive. However, but when you look at the history, it didn’t progress
evenly and went backwards and forwards.
17th century = 50 capital offences
18th century (1765) = 165 capital offences
19th century (1815) = 225 capital offences
Why were there so many capital offences?
1560-1630: population growth and pressure at the social base
- Understanding of medicine and science improving so children weren’t dying as much
- Wasn’t the availability of food and work
1780-1850: population growth, industrialisation, and urbanisation
- Middle class and upper class were growing, and lower classes saw their wealth and
stole property from them
Both periods saw very marked concerns among the respectable classes about the
possibilities of social disintegration and disorder
The rapid increase of capital offences of the statute books became known as the bloody
code.
Examples of bloody codes were:
- Cutting down trees
- Stealing horses or sheep
- Wrecking a fishpond
Class based justice
- Law for the social elite
- Magistrates and judges were drawn from the upper, landed classes
- Law itself was overwhelmingly concerned with property and was made by the social
elite
Many crimes can be interpreted as acts of resistance to, or survival within, the inequitable
economic system
o Poaching
o Sedition
o Riots
Between 1770 and 1830, over 7,000 people were publicly hanged in England for small
crimes, and everyone would go watch: both middle and lower class
- Public hanging would show the power the law had and show what would happen if
you committed an offence to stop and deter them from doing it
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, - Reinforce view in society that criminals need to be condemned
Decline of the bloody code
Campaigns were begun by ‘respectable groups’ and thinkers to end the death penalty for
petty crimes.
The rise of moral sensibility and reformism: people became repulsed by the cruelty and
barbarism of legal codes under the ancient regimes throughout Europe
Cesare Beccaria (1738-94)
Advocated progress: human condition could be improved
Challenged ideas grounded in faith, tradition, authority
Classical scholars – faith in science and reason
Beccaria’s principles of Justice (1764)
- Laws are clear, simple, and unbiased
o Shouldn’t be an expert to understand the law
o Ordinary systems should understand the law, so they don’t end up breaking it
o Law should be applicable to everyone equally
- The law should place as few restrictions on individual freedom
- Punishment must be proportionate and limited, it should not exceed the harm done
- The purpose of law should be to deter in a general sense
- Punishment should be speedy and certain
- Exemplary punishment should be prohibited
- There should be a written code of the whole criminal law
Bentham’s principles of morals and legislation (1789)
Principle of utility- the social control should be governed by the principle- ‘the greatest
happiness of the greatest number’ – greatest good for the greatest amount of people
The degree of punishment, and the consequences of crime, ought to be so contrived as to
have the greatest possible effect on others, with the least possible pain to the delinquent
The Panopticon
- A round, multi-tiered open structure with a guard tower in the center
- Bentham conceptualized a single round building with a floor-to-ceiling guard tower
in the center
- Emphasis on disciplinary training
- The purpose of the new discipline in institutions was to produce obedient subjects
- This happened in a range of institutions: the workhouse, the asylum, the prison
You could be being watched at any time so it trains you to be disciplined as you feel you
could be being watched at any time. Observation and surveillance.
Justifying criminal law: what ought to be the scope of criminal law be?
J S Mill (1859) on liberty:
- The only purpose for which power can be rightfully exercised over the member of a
civilized community, against his will, to prevent harm to others
- The coercive powers of the state should ONLY be used to maximize societal
happiness
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, - The function of the criminal law should maximize harmful suffering through of
harmful conduct by the most efficient needs necessary
- Conduct that doesn’t harm society shouldn’t be punished
The Harm Principle
- Limiting harm done to others
- Never to control harmless behavior or to prevent person harming herself
- Accommodates the concerns of the state whilst respecting individual freedom
- An individual’s harmful conduct should only be subject to punishment where she is
genuinely responsible for it
Contemporary Theories of Criminal Law: Philosophy
While many criminal laws remain retributivists, others recognize the regulatory,
instrumental, and utilitarian aspects of criminal law, which originated with Beccaria and
Bentham.
Proponents of deterrence see the purpose of criminal law to deter and prohibit rather than
punish.
From this perspective criminal law can be understood to have a symbolic function and
distinct set of procedural rules that differentiate it from civil law:
- Rules of evidence
- Burdens and standards of proof
- Special enforcement mechanisms, such as public policing and prosecution
Contemporary Theories of Criminal Law: Sociology
What role does criminal law play in society?
- Constructing social values
- Upholding prevailing structures of social, economic, and political power
- Producing social norms
- Masking and producing gendered, racialized, ablist and lgbtq+ phobic tendencies of
criminalization, prosecution, and sentencing
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