INTRODUCTION TO CRIMINAL LAW
Central issues
• Important distinction between criminal law where aim of court is to punish the wrongdoing of D and civil law where aim
is to compensate V for injuries wrongfully caused by D.
• Principles which underpin criminal law: legality, responsibility, minimum criminalization, proportionality and fair
labelling.
• Criminal law made up of mixture of statues and common law principles. Some believe law would be in better state if
criminal law put into a single Criminal Code. Others think this would be too inflexible.
• Much debate about how govt. should decide which acts are criminal. Popular approach= criminal law should only be
concerning with acts which cause other people harm.
• Extensive dispute between criminal lawyers on how to determine extent to which D can be blamed for his or her actions.
• Criminal lawyers tend to focus on definitions of criminal offences. In practice, procedures that lead to a person facing a
criminal court also extremely important.
• HRA 1998 now plays central role in several parts of criminal law.
• Feminist and critical scholars have done much to challenge some of the unspoken assumptions that underlie criminal law.
Definition of Crime
• R.White and F Haines, Crime and Criminology. Legal and sociological definitions of crime.
o Many diverse conceptions of crime, which reflect different scientific and ideological viewpoints;
No. Type of Definition Explanation
What the state identifies as a crime is a crime. If something is written into the
1 Formal Legal Definition criminal law and is subject to state sanction in the form of a specific penalty,
then that activity= crime.
Crime involves both criminal offences (e.g. assault) and civil offences (e.g.
2 Social Harm Conception negligence), each type of action or inaction brings with it some type of harm,
each offence should therefore attract some sort of penalty.
Crime, in essence does not vary across different cultures. Murder= murder
3 Cross-Cultural Universal Norm regardless of society. We can postulate conduct norms that cut across diverse
cultural backgrounds.
Labelling Approach to the Crime only really exists when there has been a social response to particular
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Definition of Crime activity that labels that activity as criminal. If no label- in effect no crime.
Crime occurs whenever a human right has been violated, regardless of the
5 Human Rights Approach legality or action. Such a conception also expands def of crime to include
oppressive practices e.g. racism, sexism, class-based exploitation.
Defines crime in terms of manner in which deviance represents a normal
response to oppressive or unequal circumstances. Major focus here is on power
6 Human Diversity Approach
relations, and attempts by dominant groups to restrict human diversity of
experience, language and culture.
o Variation of definition often has real consequences upon how different types of behaviour are dealt with at a practical
level. E.g. issue of violence perceived and responded to by criminal justice institutions depends upon range of political
and social factors. Crime not inherent in an activity, it is defined under particular material circumstances and in relation
to specific social processes.
• Whether a particular kind of conduct should be regarded as criminal can change over time as a response to political and
social factors depends on where in the world you live. E.g. legal response to homosexual sexual activity has changed over
decades in response to social, political and legal influences.
• Definition of crime important when distinguishing between crimes from civil wrongs. If you hit someone- you may be
prosecuted for criminal offence of assault and receive a fine. May also be sued by V for damages in civil law of tort. Both
proceedings result in a loss of money for D. However crucial difference= censure and punishment attached to criminal
conviction, fine carries a moral blame. Award for damages may signify that a person is responsible for loss but not carry
sense of condemnation that a criminal sanction does.
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,• Andrew von Hirsch and others suggest that it is the censure that attaches to a criminal penalty which most clearly
distinguishes criminal wrongs from other legal wrongs.
• Not everyone convinced by this- e.g. possible to award punitive damages in civil proceedings if court regards the tort of
breach of contract as a particularly blameworthy one.
• Others, such as Andrew Simester and Bob Sullivan argue that state intervenes with criminal law to protect citizens when
people are unable to protect themselves or receive adequate compensation through the civil courts. By contrast, individuals
able to protect themselves against breach of contract and undo damage with aid of civil law.
• Grant Lamond: what makes something a crime is that it involves the sort of wrong that warrants punishment by the state.
• L.Zedner, Criminal Justice
o Legal classification of crime is fraught with difficulties;
o (1) Central to legal classification of crime is its public quality: A wrong that arises primarily in respect of the rights
and duties owed only to individuals is the subject of civil law, whether as a tort, or breach of contract or trust and
property rights.
§ Crime- wrongdoing is deemed to offend against duties owed to society.
§ To complicate matters- same conduct (or inaction) may be both civil and criminal wrong- in which case-
proceedings generally taken in both civil and criminal court simultaneously. E.g. assault potentially both tort
and crime. A deception may entail a tort, breach of contract or trust or be treated as a crime.
§ Overlap makes it important to identify the differences that determine whether civil or criminal liability or
both arise.
§ Liability of civil wrongdoer principally based upon loss he has occasioned. Criminal wrong resides (in
principal at least), in voluntary action of perpetrator, their culpability, and the harm caused.
§ Civil law proceedings generally brought by injured party to secure compensation or restitution. While it is
the state that prosecutes and punishes crime.
§ Serious problem with legal classification of crime as public wrong= it is uninformative: a crime is that which
is legally designated as criminal. BUT, classification doesn’t tell us how, why or to what end that legal
designation has arisen. Cannot explain why some forms of deviance attract response of the law and not others.
Does not explain what determines whether that response is criminal, civil or both.
o (2) Crimes must be designated by statue or case law and its component parts clearly specified- Every crime consists
of a conduct element and unless a strict liability crime, an accompanying mental element.
§ Conduct element- specifies the act or conduct, omission, consequence, or state of affairs that is the substance
of the offence.
§ Mental element- specifies state of mind prosecution must prove D had at time of committing offence.} both
must be set down in law to define an offence and be proved to secure a conviction.
§ Honours principle that there be no crime without law and that liability arises only in respect of actions or
omissions already proscribed by law as criminal.- People free from arbitrary punishment, gives fair warning
to potential offenders that they may expect punishment to ensue. Respects presumption of innocence –
improper to speak of someone as a criminal until all aspects of liability for a crime have been proven in a
court of law.
§ Problem= though specifies structural conditions (principally mental and conduct elements) that must be met
before a court of law will convict, it basically says that both criminal law responds to crime and crime is
defined by criminal law- creates circularity. At face value suggests- without criminal law there can be no
crime or even that criminal law, in some bizarre sense, is the formal cause of crime.
o (3) Legal ideology makes certain claims as to the objectivity and political neutrality of legal doctrine and the
autonomy of legal reasoning by which judgement is reached- E.g. attention to centrality of mental element in general
part of the criminal law attests to its importance as a mechanism for assigning responsibility. But legal ideology can
be problematic too. Proclaimed authority of the judgement and bringing in of guilty verdict are brutal techniques for
imposing order on social strife or messy disputes in which attribution of blame is often far less clear-cut than law
pretends.
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, o (4) Requirement that crime be subject to a distinctive set of procedures- Rules of evidence, standard of proof,
requirement that crime be adjudicated in a designated forum, subject to its own procedural rules and staged by its own
personnel, are all intrinsic to the legal definition of crime. Requirement of proof beyond all reasonable doubt, principle
of morality, and the rules and conventions of the adversarial system combine with the legal institutions of the
magistracy, judiciary and lay jury as distinctive features of the criminal process. Understood this way- crime can be
defined as that which is the subject of the criminal process: without prosecution and conviction, no liability for crime
can said to have occurred. Problem= doubtful whether defining crime by reference to laws of evidence and procedure
takes one much further.
§ Larger problem perhaps that criminal law scholarship does not address the ways in which law is in practice
applied by police, prosecutors, defence lawyers, magistrates and judges. Simple application of legal
definitions misses important variations in social attitudes and moral judgements that determine how those
definitions are in practice imposed. Cannot account for disparities in application of the law according to age,
sex, class and race of the supposed perpetrator.
§ Great bulk of the 8,000 offences in the English Criminal Law are crimes of strict liability, and as such, require
no intention. Raises doubts about the centrality of intention to criminal liability and centrality of individual
responsibility. With regards to strict liability- difficult to sustain the notion that crime is principally defined
by culpable wrongdoing.
Statistics of Criminal Behaviour
• Significant difference between reported offences (reported to police and officially recorded) and British Crime Survey (where
randomly selected people are interviewed and asked whether they have been the victim of violence). BCS stats seek to include
crimes which have not been reported to police:
o In a recent survey 61% of people admitted some kind of offence against the govt, their employers or businesses. E.g. 34%
admitted paying ‘cash in hand’ for services to avoid paying tax.
o BCS estimates that for years 2008/2009 there were 10.7 million crimes committed against adults. Of these 4.7 million
were reported to the police.
o Risk of being a victim in a crime in a given year is 23%, in 1995 it has been 40%. Risk of being a V in a violent crime in
2008/2009= 3%. But for young men aged 16-24 was 13%.
• Property offences make up 80% of crimes noted by BCS.
• Detection rate of reported offences was 24% for 2008/2009.
• 45% of women have experienced some form of domestic violence, sexual assault, or stalking.
• Over half of Britain’s motorists break the speed limit every day, according to survey by RAC.
• Principles of Criminal Law
• Some commentators and judges suggest that these principles underpin the English and Welsh criminal Law. Not in any sense
strict rules which are followed throughout the criminal law. Rather proposed by some academics as principles to which the law
should aspire.
• Principle of Legality- Criminal offences should be defined clearly enough so as to allow those who wish to be law abiding
citizens to be confidence that they will not be breaking the law. Thus saying ‘It is a criminal offence to behave badly’ is too
broad- would not know what ‘behaving badly’ meant. Authorities may regard certain conduct as ‘bad behaviour’ even if you
are trying to act lawfully.
o This principle often regarded as a key aspect of the ‘Rule of Law’- notion that many constitutional lawyers regard as the
central plank of a sound legal system.
o As well as being clear and capable of being obeyed (e.g. a law which prohibited breathing in public would clearly infringe
the principle), the law must also be readily available to the public. As, even if it were written in the clearest language, if
kept secret, the laws would not be able to be upheld.
o Section 5 of Public Order Act 1986- arguably infringes the principle. States it is an offence to engage in disorderly
behaviour or threatening, abuse, or insulting behaviour likely to cause ‘harassment, alarm or distress.’ Potentially very
wide offence, provides discretion for police officers to arrest people for conduct of which they do not approve. *Matterson
v Holden [1986] magistrates were entitled to say that two men kissing were ‘insulting’ passers-by. D charged under
Metropolitan Police Act 1839, S54(13).
o One study found that it is often used to deal with people who swear as police officers- different to behaviour offence
originally designed for.
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, • Principle of Responsibility
o People should only be guilty in respect of conduct for which they are responsible. People should not be guilty for conduct
over which they had no control. This principle might be infringed if criminal law punished a person for behaviour he
carried out while suffering from an epileptic fit for example.
• Principle of Minimal Criminalization
o Criminal law should only prohibit something if it is absolutely necessary. Practical reason- our courts and prisons are over-
crowded enough without creating an ever increasing number of offences. Principle reason- Criminal sanction conveys
message that conduct was not only bad but bad enough to involve criminal proceedings. Censure function will be lost if
less serious conduct is criminalized.
o Criminal law only one way of influencing undesirable behaviour. Education, rewarding good behaviour, shaming and civil
proceedings alternatives for dealing with it.
o Is it necessary to have 8000 statues which create criminal offences?
o Andrew Ashworth, ‘Is Criminal Law a Lost Cause?’ (2000) Law Quarterly Review 225-
§ Number of offences in English Criminal Law continues to grow year by year.
§ Little sense that the decision to introduce a new offence should only be made after certain conditions have been
satisfied, little sense that making conduct criminal is a step of considerable social significance.
§ Lord Williams of Mostyn stated, offences ‘should be created only when absolutely necessary’ and when creating
new offences following should be taken into account (i) behaviour in question is sufficiently serious to warrant
intervention by criminal law, (ii) mischief could be dealt with under existing legislation or by other remedies, (iii)
proposed offence is enforceable in practice (iv) proposed offence is tightly drawn and legally sound, (v) proposed
penalty is commensurate with seriousness of offence.
§ Criminal law a lost cause from p.o.v of principle. New offences being created to penalise non-serious misbehaviour,
sometimes with maximum sentences out of proportion to other maxima. Govt’s. Often take view- creation of new
crime sends a symbolic message that may ’get them off a political hook’- even though new crime fails to satisfy Lord
Williams’ criteria.
§ Principle core of criminal law consists of four interlinking principles:
Ø Criminal law should only be used to censure persons for substantial wrongdoings. Should be distinguished
from proposition that (a) prevention of misconduct is a sufficient reason for criminalisation and (b) criminal
law is either on its own or in combination with other social policies, necessarily an effective means of
prevention. Appropriately targeted social, educational and housing policies may well have a greater
preventative effect.
Ø Should be enforced with respect for equal treatment and proportionality- authorities and their policies
ought to be reorganised to reflect relative seriousness of wrongdoings with which they are dealing.
Ø Appropriate protections for persons accused of substantial wrongdoing- at least the minimum protections
declared by Articles 6.2 and 6.3 of the ECHR. If wrongdoing is regarded as serious enough to warrant creation
of an offence, serious enough to require substantial max. Sentence- would be a violation for govt. to avoid
protections that a person facing such a charge ought to be accorded.
Ø Principle that maximum sentence and effective sentence levels should be proportionate to seriousness of
wrongdoing- implication like second principle- needs to be a root-and-branch change- thorough revision of
max. Penalties and re-assessment of sentence levels and differentials between them.
• The Principle of Proportionality
o Sentence accorded to a crime should reflect seriousness of crime.
o Some complex arguments over whether one offence is more serious than another: is rape more or less serious than having
a hand cut off?
o Joel Feinberg suggest focusing on V’s loss of opportunity or range of choices to grade seriousness of harm suffered by V.
o Murder therefore most serious- destroys V’s range of opportunities or choices.
o Andrew Von Hirsch and Nils Jareborg focus on four kind of interest:
§ Physical integrity: health, safety, avoidance of physical pain
§ Material support and amenity: includes nutrition, shelter and other basic amenities
§ Freedom from humiliation or degrading treatment
§ Privacy and autonomy.
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