Chapter 5 ( Criminal Rules and theory) Flashcards
Criminal law
What is Law?
Law is a body of rules supported by sanctions and administrated by the state
What is a crime?
A conduct which is forbidden by the state and for which there is a punishment
What are the sources of criminal law?
- The vast majority of criminal law is contained in Acts of parliament or through judicial interpretation of the law. Examples of acts of parliament include the Theft Act 1968 and the Offences against the Person Act 1861. However, murder and manslaughter are mostly not based on a statute
2.Occasionally,a criminal offence is created by Judges rather than the state. Example- the offence of conspiracy to corrupt public morals . This offence has never been enacted by parliament, but the judges recognised that it existed in (Shaw V DPP 1962)
- Judges interpret the law set out in Acts of Parliament and occasionally change their view as to the meaning of an Act. Example in R v R the courts decided that a husband could be guilty of raping his wife. This reflected the fact that society’s views on the position of women had changed.
What are the elements of criminal liability?
In most crimes, there are two elements which must be proved to show that the defendant is guilty. These elements are known as the actus reus and mens rea
Actus reus: is the physical element of the crime - what the defendant has done or not done
Mens rea: is the mental element of the crime- what the D is intending, thinking or failing to think about when the crime is committed.
Each crime has its own actus reus and mens rea. Many crimes require a mens rea of intention or recklessness as to the actus reus. Some crimes have specific mens rea. For example in Theft:
-the D must appropriate property belonging to another for the actus reus and to do this dishonestly and intend to permanantly deprive the other of it for the mens rea.
What are crimes of strict liability?
Some criminal offences can be committed by proof of actus reus alone - the D does not need to be proved of having any mens rea relating to the offence. These are known as crimes of strict liability
Example- a driving offence such as exceeding the speed limit- for a person convicted, all that must be proved is that the driver exceeded the prescribed speed limit.
Who is involved in a criminal case- prosecution and defence?
Criminal proceedings are usually initiated by the Police, and the Crown Prosecution Service (CPS) prepares the case to be brought to a Magistrates Court or the Crown Court.
-Almost all Criminal cases start in the Magistrates Court, but depending on the nature and the seriousness of the offence, the case might be passed to the Crown Court to be tried before a Judge and jury.
-The accused has the chance to defend the case brought against him by supplying evidence to the court to challenge evidence put forward by the prosecution
-If the D is found guilty, a sentence will be imposed by the court. In deciding on a sentence, the court will consider the aims of sentencing as well as the aggravating and mitigating factors.
Who has to prove guilt?
The burden ( referred to as the onus) of proof is on the prosecution to prove the defendant is guilty. This means the prosecution must prove both the required actus reus and mens rea for the offence which the D is charged.
What is standard of proof?
The standard of proof is the extent to which the burden of proof must be made.
For a successful prosecution of any crime, there must be proof of the elements of the offence. Traditionally, this is known as ‘beyond reasonable doubt’ but current guidelines to judges was to use the word ‘sure’- this is the standard of proof in criminal cases.
-If the defendant raises a defence it is for the prosecution to disprove that defence. The trial judge must direct the jury to acquit unless it is satisfied that the defence has been disproved by the prosecution.
What is Reverse Onus?
For some defences, except for insanity, the burden of proof is on the defendant - they must prove to the court that this defence can be used. This shifting of the burden of proof to the defendant is known as the reverse onus. Where the burden of proof is on the defendant to prove a defence, the standard is the civil one of ‘on the balance of probabilities’. This is the standard of proof in civil law.
Aims and purpose of criminal law?
Criminal law is often seen as retributive justice. This is a theory of justice that considers proportionate punishment a morally acceptable response to crime. Today criminal law is not purely about punishment but also about deterrence and corrective justice to encourage citizens to not commit crimes or educating an offender to change their behaviour and avoid reoffending.
For example. minor offences are sometimes dealt with in ways that avoid a criminal prosecution, such as attending a speed awareness course after breaking the speed limit; and courts might to decide to impose non- custodial sentences.
Criminal law also provides a form of social control over society. This may reflect the general morality of the time and changing social attitudes. For example, the general public’s attitude to the offences of drink driving has become less tolerant.
What are some of the aims of criminal law?
- Protect individuals from harm- shield individuals from physical or emotional harm
2.Protect Property-
3.Enforce moral standards
4.Balance conflicting interests
5.Punish those at fault
6.Educate society about behaviour
7.To achieve justice
8.Provide a deterrent
The principles of Criminal Law
Fault in a legal sense, is some form of wrongdoing. This is described as an offence in criminal law. The person at fault usually has legal responsibility. In criminal law, there is a general presumption that liability is based upon fault. A person should not be held liable for a criminal offence unless they are to some extent at fault. This underpins the concept of mens rea in a criminal offence- it is what in a persons mind that distinguishes between an accident and a criminal offence.
Example-a minor car accident when parking a car will not normally be considered criminal. The event will only become criminal when the accident contains an element of mens rea, showing recklessness or intention to cause damage to the other car.
