Chapter 12- Rules of criminal law

Question 1

How would you define a crime?

Answer 1

A conduct which is forbidden by the state and there is a punishment

Question 2

What is a brief overview of the theory of criminal law?

Answer 2

• Criminal law is often seen as retributive justice (a system of criminal justice based on the punishment of offenders rather than on rehabilitation)
• Modern criminal law isn’t just about punishment but also corrective justice (the idea that liability rectifies the injustice inflicted by 1 person on another. This is also a major part of tort law)
• The criminal law also provides a form of social control over society

Question 3

What is the role of the state?

Answer 3

• It can be made by passing an Act
• A breach can lead to a penalty such as fine or imprisonment, being imposed on the D in the name of the state
• Therefore bringing a prosecution is usually seen as part of the role of the state

Question 4

What/When is conduct criminalised by judges?

Answer 4

• Occurs when judges create new offences through case law
• Only happens on rare occasions as most is made by parliament
• Example- the offence of conspiracy to corrupt public morals (Shaw v DPP)
• Example- marital rape (R v R)

Question 5

What are the most important principles for all crimes except ones of strict liability?

Answer 5

• Actus reus

- Mens rea

Question 6

What is actus reus?

Answer 6

An act, an omission or a state of affairs that is the prohibited conduct in an offence

Question 7

What is mens rea?

Answer 7

This is the mental element (guilty mind) or the fault element in an offence

Question 8

What are strict liability crimes?

Answer 8

The prosecution need prove only the actus reus, with no mental element being needed for guilt

Question 9

What are the rules of the standard of proof?

Answer 9

• The prosecution has to prove the case against the defendant
• In criminal= ‘beyond reasonable doubt’
• In civil= ‘on the balance of probabilities’
• Criminal requires a higher standard of proof because the D is at risk of loosing their liberty if found guilty

Question 10

What are the rules of the burden of proof?

Answer 10

-An accused person if presumed innocent until proven guilty
-The burden of proof is on the prosecution
-Prosecution must prove both the required actus reus and the required mens rea
-An important case on these principles is Woolmington v DPP
-The case decision made important points the HoL regarded as fixed matters on English law;
_prosecution must prove the case
_rule applies to all criminal cases
_must be applied in any court where there is a criminal trial
_guilt must be beyond reasonable doubt
_reasonable doubt can be made by evidence from the defence or prosecution

Question 11

What is a reverse burden/onus?

Answer 11

• If the burden of proof is on the defendant
• EG, if the claim they were insane at the time, the burden of proving this is on them
• Where a statute places the burden of proof on the defendant, the standard is the civil one of ‘on the balance of probabilities’