Analysing Criminal Law Flashcards
what is the ‘harm principle’?
J. S. Mill’s principle about harm in his book ‘On Liberty’
‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’
how do Gardiner and Shute describe the link between harm and criminality?
the harm principle is justified by virtue of the fact that ‘if the action were not criminalised, it would be harmful’
what case highlights criminal liability despite causing no sufficient physical harm?
Collins v Wilcock 1984
scratching a police officers arm accidentally
how does Feinberg criticise the use of the harm principle?
potential for it to be used ‘without limit’ as ‘virtually every kind of conduct can affect the interests of others for better or worse to some degree’
what is the argument for use of the harm principle in relation to liberty and freedom?
enables freedom until an external harm is caused
‘your freedom to punch me in the face ends where my nose begins’
how would Kant oppose the idea of utilitarianism?
focus on protecting the majority and public interest
individuals could be used as a means to an end to uphold policy
the punishment may be disproportionate to the ‘harm’ that the law recognises
how can the blameworthiness of the defendant be referenced within the law?
recklessness
intention
what case was recklessness considered in relation to criminal damage?
Met Police Commissioner v Caldwell (1982)
Ds knowledge of potential damage to occur
ignorance of obvious and serious risk
why was the consideration of recklessness applied differently in R v G (2003)?
question of whether the young boys would have even known of the risk in order to have been reckless to have not properly consider them
what is the formula for criminal liability?
AR + MR - Defences = Liability
what case highlighted the rule of law principle of clarity needed for the law?
R v Rimmington
Lord Bingham - offence must be ‘clear, precise, adequately defined and based on rational principle’
what case highlights the rule of law principle of all people being equal subjects to the law?
Sharma v Brown-Antoine
what does Bentham describe as ‘dog’s law’?
law which is so unclear that someone is unaware they have broken it until they receive punishment
what principle of the ECHR is based on non-retrospectivity?
whose principle does this reflect?
art 7
no one can be guilty of an offence if it was committed before the law considered it a crime
Dicey - no one can be punished except by law
