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Wrapped: Criminal Law > C1: The context of criminal law > Flashcards

C1: The context of criminal law Flashcards

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1
Q

What are the two approaches to criminalism?

A

The harm principle (liberal approach)
Legal moralism

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2
Q

What is the difference between the two approaches to criminalism?

A

The harm principle looks to only criminalise conduct that causes or is likely to cause harm to others.

Legal moralism looks to only criminalise behaviour that constitutes a moral wrong.

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3
Q

What is the drawback of the harm principle?

A

The biggest drawback is defining the word ‘harm’. Obviously death and serious bodily injuries would be harm, but what about adultery or hurting someone’s feelings? If ‘harm’ is defined broadly, it could severely restrict individual autonomy. (Opposite of liberalism)

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4
Q

What is the drawback of legal moralism?

A

Not all societies or cultures see the same thing as immoral. How do we know what a reasonable person would regard as immoral?

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5
Q

Give two reasons why criminalisation seen as the most coercive means of social regulation?

A

Someone is publicly condemned and it restricts freedom with ‘hard treatment’

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6
Q

What does ‘hard treatment’ mean?

A

Hard treatment refers to the financial and/or physical deprivations imposed on those who commit an offence, e.g. for murder, it is the imposition of a life sentence.

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7
Q

What is the long-term consequence of criminalisation?

A

The stigma attached to a criminal conviction - it can have devastating and long-lasting consequences for those convicted of an offence.

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8
Q

In order for the defendant to be convicted, what must be proven?

A

It is imperative for all the elements of the offence to coincide in time.

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9
Q

What legislation limits the scope of criminal law?

A

Human Rights Act 1998 (HRA 1998)
s3 law must be compatible with the provisions of the ECHR
s4 a statement of incompatibility can be made

European Convention on Human Rights (ECHR)
Art 8 right to private and family life

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10
Q

What balance must be struck when deciding what kinds of behaviour should be criminalised?

A

A balance between individual autonomy and state control.

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11
Q

What are the two categories of theories of punishment?

A

The consequentialist approach (forward-looking)
The non-consequentialist approach (backward-looking, retributionists)

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12
Q

What is the main objective of the consequentialist approach to punishment?

A

It is for the imposition of punishment to achieve certain objectives, e.g. rehabilitation would address the underlying causes of criminality.

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13
Q

What is the main objective of the non-consequentialist approach to punishment?

A

It focuses primarily on what happened in the past and the offence that was committed, rather than what should happen in the future. E.g. for retributivists, the punishment should correspond to the nature and severity of the wrong committed.

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14
Q

What are two consequentialist theories of punishment?

A

Deterrence-based approach
Rehabilitation-based approach

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15
Q

What is the deterrence-based approach based on?

A

It is based on the assumption that the prospect of being punished will deter people from offending.

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16
Q

What is the downside to a deterrence-based approach?

A

It doesn’t consider heat of the moment crimes, or crimes whilst the offender is drunk and can’t assess the legal impact of their behaviour.

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17
Q

What is the main focus of non-consequentialists?

A

The wrong committed by the offender and the punishment they deserve for the wrong committed (the retribution).

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18
Q

Do non-consequentialists consider future re-offending in their punishment?

A

No - For non-consequentialists, regardless of whether the punishment imposed can prevent future re-offending, this cannot be justified if it is not proportionate to the wrong committed.

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19
Q

Where in legislation can the current law on sentencing be found?

A

Sentencing Act 2020 (SA 2020)

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20
Q

What is the purpose of sentencing in SA 2020?

A

When sentencing, the court should consider:
punishing offenders, reducing crime, rehabilitating the offenders, protecting the public and making reparations.

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21
Q

Where do the three categories of offences appear in legislation?

A

Magistrates’ Court Act 1980 (MCA 1980)

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22
Q

What are the three categories of offences?

A

Summary-only
Either-way
Indictable-only

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23
Q

What percentage of criminal proceedings end in the Magistrates’ Court?

A

Around 95% of them.

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24
Q

Where would a summary trial take place?

A

Magistrates’ Court

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25
Q

Where would a trial on indictment take place?

A

Crown Court

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26
Q

What are examples of summary-only offences and where can they be tried?

A

Summary-only offences can only be tried in the Magistrates’ Court. Examples include assault, battery and many road traffic offences.

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27
Q

What are examples of either-way offences and where can they be tried?

A

Either-way offences can be tried in either the Magistrates’ Court or the Crown Court. Examples include theft, burglary, assault occasioning actual bodily harm (ABH) contrary to s47 Offences Against the Person Act 1861 (OAPA 1861).

28
Q

What are examples of indictable-only offences and where can they be tried?

A

Indictable-only offences are the most serious offences and can only be tried in the Crown Court. They include murder and rape.

29
Q

What does the word ‘indictable’ mean in the context of courts?

A

The word ‘indictable’ means that an offence is CAPABLE of being tried at the Crown Court, not that it MUST be tried there.

30
Q

What is the maximum sentence that can be imposed by the Magistrates’ Court?

A

6 months imprisonment for one offence, or up to 12 months imprisonment for two or more either-way offences.

31
Q

When will the Magistrates’ Court send a case to the Crown Court?

A

When it isn’t able to pass an appropriate sentence if the defendant is convicted, e.g. if the max sentence is five years imprisonment.

32
Q

Who does the burden of proof lie with in a criminal case?

A

The prosecution has the responsibility of proving the defendant’s guilt.

33
Q

Which case does the ‘legal burden of proof’ lying with the prosecution come from?

A

Woolmington v DPP [1935]

34
Q

What is the Woolmington principle?

A

That the burden of proof falls on the prosecution, by proving the defendant’s guilt.

35
Q

What are the 3 exceptions to the Woolmington principle, where the legal burden falls on a defendant?

A

1) Insanity
2) Express statutory exceptions (e.g. knife in public place)
3) s101 Magistrates’ Courts Act 1980 (evidential burden)

36
Q

Expand on 1) Insanity, the first exception to the Woolington principle?

A

There is a legal presumption that the defendant is sane. If they are insane, the burden falls on the defendant to rebut this presumption.

37
Q

Expand on 2) Express statutory exceptions, the second exception to the Woolington principle?

A

There are a few instances where Parliament has expressly placed the legal burden on proof on the defence:

s139(4) Criminal Justice Act 1988 (CJA 1988): defence must prove that they have good reason or lawful authority for possessing a knife in a public place.

ss2-4 Homicide Act 1957 (HA 1957): defence must prove on the balance of probabilities the defences of diminished responsibility (s2) or acting in pursuance of a suicide pact (s4).

38
Q

Expand on 3) s101 Magistrates’ Courts Act 1980, the third exception to the Woolington principle?

A

In s101 MCA 1980, it says that if the defendant relies on an exception/excuse for their defence, they must bear the burden of proving it.

E.g. it is easier for the accused to prove that, for example, they had a licence to sell alcohol or insurance for their car, than for the prosecution to prove that they did not.

More ‘serious’ the offence, the less likely it would be that Parliament intended that the defence has the legal burden of proof.

39
Q

What is the general rule about the relationship between the legal burden and evidential burden?

A

The general rule is that the party that has the legal burden of proving a fact in issue also has an evidential burden.

40
Q

Via which means can the evidential burden be satisfied?

A

By producing evidence in a number of forms, including:
- the oral testimony of a witness in court
- documentary evidence
- photographic and video evidence
- real evidence.

The evidential burden is the practical way a party discharges its legal burden by putting evidence before the court.

41
Q

Does the defendant have an evidential burden?

A

No, other than a tactical burden to raise reasonable doubt in the minds of the fact finder. E.g. if the defendant simply says that they acted in self-defence in an assault case, and the prosecution did not contradict that statement, it would probably be enough to induce a reasonable doubt in the minds of the people trying the case.

42
Q

When the defence discharges its evidential burden (if required), what happens to the legal burden?

A

Where the defence discharges its evidential burden, the prosecution assumes a legal burden to disprove the defence and/or denial of liability raised by the accused.

43
Q

Is intoxication regarded as a denial of liability or a defence?

A

It is more appropriate to regard it as a denial of liability rather than a defence, as the defendant essentially denies that they have completed every single element of the offence they were charged with.

44
Q

What is the standard of proof in criminal cases?

A

The standard of proof is beyond reasonable doubt.

45
Q

What is a good way of explaining ‘beyond reasonable doubt’?

A

Denning J explained the meaning of the phrase in the following way: ‘It need not reach certainty but it must carry a high degree of probability.

46
Q

What is the standard of proof when the legal burden of proof is on the defence?

A

When the legal burden of proof is on the defence – for example, where the defendant pleads insanity or diminished responsibility in a murder case – the standard of proof is the civil standard of on the balance of probabilities.

47
Q

What is a good way of explaining ‘on the balance of probabilities’?

A

When we think it is more probable than not. E.g. 51%

48
Q

Under which article of the ECHR do defendants argue that giving them the legal burden infringes the presumption of innocence?

A

Art 6(2) ECHR - the presumption of innocence.

49
Q

If a court concludes that imposing a legal burden on the defendant violates the presumption of innocence under Art 6, what will it do?

A

It will only impose an evidential burden of proof on the accused.

50
Q

How successful have the challenges alleging that a reverse burden clause infringed the presumption of innocence under Art 6(2) ECHR been?

A

The majority have failed.

51
Q

Is a reverse burden clause automatically incompatible with the presumption of innocence under Art 6(2) ECHR?

A

No, a reverse burden clause is not automatically incompatible with Art 6(2) if it is reasonable and proportionate to the aim of the provision. An evidential burden is not incompatible with Art 6(2).

52
Q

What two things will make a reverse burden more easily justified?

A
  1. Where the defendant must prove something within their own knowledge
  2. Where the overall burden remains on the prosecution, so the defence only has an evidential burden.
53
Q

Explain why in Sheldrake v DPP, Attorney General’s Reference (No 4 of 2002) [2004] (1st of the conjoined appeal - drunk driver) the legal burden was on the appellant instead of the prosecution?

A

The appellant had been convicted of being drunk while in charge of a motor vehicle, but he said he wasn’t going to drive the car. The burden fell on the appellant, as the circumstances were clearly within the defendant’s knowledge and easier for him to prove than for the prosecution.

54
Q

Explain why in Sheldrake v DPP, Attorney General’s Reference (No 4 of 2002) [2004] (2nd of the conjoined appeal - terrorist) the evidential burden was on the appellant instead of the prosecution?

A

In seeking a defence of joining a proscribed organisation after it had become proscribed or not being part of any activities once it was proscribed, the court ruled that the burden would only be evidential. This was because:
- It is possible they were innocent
- Noone from the proscribed organisation could come forward to say that the appellants hadn’t taken part in activities.
- It was a ‘serious’ offence, with a max penalty of 10 years
- Whilst security/terrorist considerations always carry weight, they don’t absolve Member States from their duty to ensure basic standards of fairness.

55
Q

Do reverse burdens breach the presumption of innocence?

A

Reverse burdens do breach the presumption of innocence, but where a breach is both justifiable and proportionate, courts will aim to give effect to Parliament’s intention by imposing an evidential, rather than a legal burden on the defendant.

56
Q

Can a single event result in both criminal and civil proceedings?

A

Yes, it can.

57
Q

What did the government introduce that blurred the lines between criminal and civil law?

A

Civil preventive measures, like ASBOs/Part 1 Injunctions or CBOs.

58
Q

What is the stated objective of civil preventive measures?

A

To prevent certain types of criminality rather than to punish people for their behaviour.

59
Q

What is a CBO?

A

A Criminal Behaviour Order

60
Q

What is an ASBO and what has it been replaced by?

A

An Anti-Social Behaviour Order - now replaced by the Part 1 injunction in the Anti-social Behaviour, Crime and Policing Act 2014 (ABCP 2014)

61
Q

What are the two categories of civil preventative measures?

A

Post-conviction measures, e.g. CBO..
Non-conviction measures, e.g. Part 1 injunction in the Anti-social Behaviour, Crime and Policing Act 2014 (ABCP 2014).

62
Q

According to s331 Sentencing Act 2020 (SA 2020), what three conditions must be satisfied in order for a CBO to be imposed on someone?

A
  1. They must have been convicted of a criminal offence;
  2. The defendant must have behaved in an anti-social manner; and
  3. And the CBO ‘will help in preventing the offender from engaging in such behaviour’ in the future.

The court can also impose positive and/or negative requirements on the defendant, e.g. attend alcohol rehabilitation treatment and prohibit them from associating with certain individuals.

63
Q

What happens if someone breaches the requirements of a CBO?

A

Although the order is civil, breach of the requirements imposed without reasonable excuse constitutes a criminal offence which carries a max sentence of 5 years imprisonment and a fine.

64
Q

According to Part 1 ABCP 2014, what two conditions must be satisfied in order for a Part 1 injunction ABCP 2014 to be imposed on someone?

A
  1. They must must have behaved in an anti-social manner
  2. It must be ‘just and convenient to grant the injunction to prevent the respondent from engaging in anti-social behaviour’.

Similar to the CBO, the court can impose any positive and/or negative requirements it deems appropriate on the respondent in order to prevent them from behaving in a similar manner in the future.

65
Q

What happens if someone breaches the requirements of Part 1 injunction ABCP 2014?

A

In contrast to the CBO though, breach of the requirements imposed through the Part 1 injunction constitutes a civil contempt of court rather than a criminal offence. Nonetheless, the respondent can face a maximum sentence of two years imprisonment and an unlimited fine.

66
Q

What is the ‘golden thread’ of criminal law and which case does it come from?

A

The presumption of innocence until proven guilty - this comes from Woolmington v DDP [1935] and is now supported by Art 6 ECHR.

67
Q

What is the age of criminal responsibility in England and Wales?

A

The age of criminal responsibility in England and Wales is 10 years old. This means that, from the age of 10, a person can be convicted of a crime. This is one of the lowest ages across the world – it is higher in many places (including in Scotland).

Wrapped: Criminal Law (17 decks)

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