Definitions/Perspectives of what is meant by ‘crime’
Criminal law is law which attends to some or all of the following:
Formal/’legal’
o This is how the law defines a crime: Crime is a breach of the criminal law
Philosophical/normative
o What is (morally) wrong? What justifies punishment?
o What is good, what is bad? What is bad enough to constitute a crime?
o If it is bad enough to constitute a crime then it probably deserves punishment
Sociological
o ‘Society’ labels certain acts as crime. Crimes can be labelled by those in authority.
Crime is therefore constructed (a social construct)
Critical
o Builds on previous idea. There are institutions given power to label certain
behaviours as crimes. What do they choose and why?
o Definition of ‘crime’ can reflect particular interests/power
**The most important question to keep in mind is why some things are criminalised and others are
not. Is there always a rational reason for criminalising some things and not others? Probably not
always.**
Some other areas to qualities/features of crime to consider when thinking about public law:
o Public-ness – criminal cases are not private matters. They are usually brought by the
Crown, meaning prosecutions are pursued when they are in the public interest
o Punishment
Crimes as public wrongs?
‘Public’
o The general public has interests
o Idea of crimes as public wrongs is a conceptual idea. Is it still a public wrong if it
happens in private? Why? Historically crimes committed in private have often been
overlooked (eg domestic and child abuse), however in recent years this has begun to
change
o The CPS will ask themselves ‘is it in the public interest that this prosecution goes
ahead?’
‘Wrongs’
o There are various ideas on what is meant by wrongs. Is wrongness associated with
motive? Bad/negative outcomes/ repercussions?
**Does this mean criminal law is a form of public law?**
Jobs of the criminal law
Communication
o Of what? To whom?
o Should/ is the criminal law a list of thing to not do? Does it communicate risk of
punishment
Coordination
o Of what? To whom?
o If we didn’t have rules, society would fall apart? So does criminal law coordinate
society? Eg rule that we should all drive on the same side of the road
, Protection
o Of whom? From what/whom?
o Protect people from criminals?
o Protect you from yourself? Eg drug laws
o Protect you from the state? Criminal law sets out criminal boundaries of what the
state can intervene in
Punishment
o Crimes call for/ justify punishment
o On what basis? Retribution? Inherent wrongness/deontological (looking at whether
the action itself is inherently (morally) wrong, rather than considering whether the
outcome is wrong)?
Deterrence
o Utilitarian (greatest good for greatest number) / consequentialist (the consequences
of an action are the ultimate factor in deciding whether something is right or wrong)
A ‘legal’ perspective on criminal law: The building blocks of criminal liability
Criminal Offence is made up of 2 parts:
o Mens Rea
Mental aspect – the defendant’s state of mind
A state of mind always attaches to an actus reus requirement – eg
recklessness about…
o Actus Reus
Circumstances in which the behaviour takes place (eg for murder the killing
must be unlawful)
The result of the conduct (eg for murder there must be a death)
Causation must also be established
What principles can we use to evaluate criminal law?
Remember, criminal law is part of a network eg criminal justice systems/ processes more
broadly
Look at ‘The limits of penal sanction’: Packer
The law can be evaluated by looking through different processes:
o In a legal system there may be two different commitments. Eg a system committed
to due process would focus on protection of rights etc
Due Process Crime Control
Protection of rights Reduce crime
Safeguards by legal process Efficiency in process
‘normative’ presumption of innocence ‘Factual’ presumption of guilt
Rules ensure core rights and liberties are Minimal rules or obstacles with process
protected
These will result in a more summary
These result in things possibly taking system, where priority is on controlling
longer/being more expensive, but there crime. There will be less safeguards
will be more safeguards
General Principles to evaluate substantive criminal law (see Herring)
Legality
o Criminal law must be clear, capable of being obeyed, readily accessible to the public
, o An example of a criminal law which poses problems for this is the law on gross
negligence manslaughter. The offence is very vague, not much clarity.
o In America some criminal law can be void for vagueness
Fair Labelling
o Describe, define and distinguish offences reasonably
o Need to label people’s actions fairly. This has moral significance. Different labels
should be given to different actions
o For example, not all unlawful killings are murder (eg manslaughter). They are
morally different
o Insanity does not have medical definition, therefore not labelling people properly?
Responsibility
o Defendant must be reasonably connected to the offence
o Punishment must be deserved.
o Did they cause the outcome? Foresee it? Intend it?
Minimum criminalisation
o In a liberal state – no more criminal law should be applied than is needed
o Less criminal law = more liberty
o Some offences do not comply with this? Eg drug possession offences/ ‘speech’
offences
Proportionality
o Links to criminalisation and sentencing
o Eg progression of maximum sentences through the non-fatal offences
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