Summary
Criminal Law 1 & 2 Summary
- Module
- Criminal Law
- Institution
- University Of Sussex (UoS)
Providing a very concise yet detailed summary document for all essential material for criminal law 1 & 2 modules.
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CRIMINAL LAW NOTESCONTENTS
The Role of the Criminal Law 2
The Anatomy of a crime – AR and MR 5
Actus Reus 5
Mens Rea 6
Omissions Liability 19
Causation 21
Inchoate Liability 25
Attempt 27
Conspiracy 32
Assisting and Encouraging 34
Complicity 40
Denials of offending 48
Intoxication 49
Automatism 56
Insanity 60
General defences 58
Duress by threats 65
Duress by circumstances 68
Necessity 69
The Public and Private Defence 71
Homicide 77
Murder 77
Voluntary Manslaughter 79
Involuntary manslaughter 85
Unlawful act manslaughter 85
Gross negligence manslaughter 87
Reckless manslaughter 89
Inchoate encouraging or assisting suicide 89
Non-fatal offences against the person 89
Controlling and coercive behaviour 89
Stalking/harassment 92
Technical Assault 94
Battery 95
Assault occasioning actual bodily harm 96
s20 Wounding or GBH 97
s18 Wounding or GBH 97
Hate Crime 99
Racially/religiously aggravated assault 99
Racially/religiously aggravated 102
1
, harassment/stalking
The defence of consent in offences against 102
the person
Sexual offences 104
Rape 105
Assault by penetration 106
Sexual assault 108
Causing another person to engage in sexual 109
activity without consent
Issues with consent regarding sexual 110
offences, including presumptions and
critique
Property offences 119
Theft 119
Robbery 130
Burglary 131
Criminal Damage
The role of the Criminal Law
What is crime?
Criminalisation? This is the most coercive way in which the state can regulate behaviour.
What is/should be criminalised? A public wrong that should not be done. Criminalisation
should occur if, and only if, a public wrong has been committed. Public wrongs are named
such because they violate the values of a community or the public. There is no criteria by
which we can identify something as a public wrong and then criminalise it, once something
is criminalised, the fact that it is criminalised defines it as a public wrong.
Morality and public morality
Lord Devlin – a shared morality is necessary for individuals to have a meaningful existence
within society. Criminalisation is only justified when serious threat is posed to society’s
structure. Devlin believes that the criminal law provides us with a moral code, whereas Hart
believes that the criminal law is only there to prevent harm to another and that we can only
legislate against harm to self. The harm principle (liberalism) – john stuart mill thinks that
individual liberty is the starting point for harm. The principle that you can do what you want
with your body and your mind, you should only be stopped from doing this if you are
causing harm to others. How can we balance what is harm/not – surgery? Some people die
on the operating table but that wouldn’t usually be criminalised. Harm raises a lot of
questions.
Blameworthiness
Mala in se – something outright and always wrong morally and legally
2
,Mala prohibita – something wrong because it is prohibited by the law and is legally wrong.
We should only criminalise someone whose conduct is blameworthy, they must be
conscious that they were causing or risking causing harm, this is known as subjective fault.
Objective fault is when someone ought to have known that they would cause harm.
Is it sufficient to show there was harm, regardless of if they are blameworthy or not? This is
known as strict liability.
Cultural harm? Contribution to normalisation of crimes, ultimately harming cultural values.
Crime and punishment
Types of punishment – by the state
Imprisonment
Community orders
Fines
Theories of punishment
This use of punishment is what distinguished criminal law from other types of law. The
consequences are punishments rather than damages etc.
Retributive theories – looking back, D has done wrong, which is in the past, so we must try
and inflict punishment in turn for the wrong they committed, finding a balance. Someone
who has committed a criminal offence is deserving of punishment in some way. The
infliction of punishment demonstrates society’s disapproval of the wrong and at the same
time affirming the standards of society, we call this the denunciation element of criminal
law. It is clearly defining the conduct as unacceptable. Some would say this element reflects
vengeance in some way. Eye for an eye type view.
Utilitarian theories – looking forward, concerned with stopping further future crime,
through either of the following instrumental approaches, instrumental meaning we should
only punish if this will achieve something else.
1. Deterrence – which has 2 aspects to it, specific deterrance, by punishing an
individual, we are deterring them from committing further crimes. Or general
deterrence, which is the ides that punishment of offenders, this will deter other
possible offenders from committing that crime. Discouraging both them and other
people from committing further crimes.
2. Incapacitation – about punishing to prevent or restrain that person from committing
crimes during the duration of their sentence. i.e. murderers can’t murder if they’re in
prison. (in theory, because as we know crime is also committed within prisons)
3. Rehabilitation/ reform – the idea that punishment should be aimed by assisting an
offender in improving the individual to make them a better person and obide by
society’s rules. This goal is embodied within the prison rules 1999 Rule 1. Criticisms
of this say that this is an offender based punishment rather than a victim based
punishment. Recidivism rates suggest that rehabilitation is not necessarily effective.
Restorative justice
3
, Different and arguably not really punishment but rather accountability. This is where parties
with a stake in the offence come together to collectively resolve how to deal with the
offence, the aftermath and the future. The idea is they come together with a facilitator to
try and talk to each other about what happened and perhaps come to an agreement on ;
Reparation to the victim
Restoration of the well-being of victim and the wider community
Acknowledgement of responsibility by offender and accountability of what they have
done
Restorative justice occupies an interesting place within criminal law, it can be used as an
alternative to formal proceedings, or as part of a court ordered process. In 2017, there were
over 100,000 community resolutions or restorative justice type proceedings dispensed by
the police. Should the police be involved, or should this be separate from the formal
process. Restorative justice intends to be rehabilitative and victim based.
Sentencing in England and wales at the moment should be proportionate to
blameworthiness and the harm caused, under s142 criminal justice act 2003 moved from a
focus on seriousness and adopted plural objectives . within this act we can see references to
punishment, implicitly including retributive and utilitarian, reform and rehabilitation,
protection of the public and the offender being held accountable for their actions and the
making of reparation through restorative justice. A mixture of goals rather than 1 clear goal
of punishment. There are sentencing guidelines made by the sentencing council for England
and wales, within which are also lists of aggravating and mitigating features of the offence
and the offender, in order to assess blameworthiness and harm and ultimately how severe a
sentence.
Trends in Punishment
Late nineteenth century – principle of less eligibility
1920’s – ‘treat and train’
1960’s – discipline, surveillance, control
1970’s – demise of the welfare state and rise of neoliberalism
1980’s – humane containment. Designed to promote universally agreed standards and
undermine the inhumane aspects of punishment in wake of prison protest in 1970’s
1990’s – ‘prison works’
1997 onwards – managerialism and correctional sentencing
Early 21st Century - rise of popular penalism
Prison Population
May 2018 – 83,430
September 2016 – 85,082
October 2015 – 86,145
Biggest per capita prison population in western Europe.
All figures found at
http://researchbriefings.files.parliament.uk/documents/SN0433/SN043334.pdf
After 1993
- Courts were sending more people to prison
- Sentences imposed became longer
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