Criminal Q9 Flashcards
Law and justice
Definition:
- justice generally encompasses values of fairness, justness, equality of treatment, and what is ‘right’
- Lord Wright defines it as the ‘guiding principle of a judge in deciding cases’
- natural justice refers to the fundamental principles of fair treatment and ensures all individuals in society are granted to a fair trial to legal representation
Significance:
- may provide closure and comfort to victims and their families
- potentially deters re-offenders and potential offenders
Important areas of justice:
- Procedural justice
- Refers to the fairness of the processes and procedures used to make legal decisions, ensuring all parties have fair opportunity to present their case and that decisions are made impartially and consistently
- Currently decided through elected officials in legislation
- Substantive justice
- Refers to the fairness of laws themselves, ensuring legal rules and their application promotes just outcomes and protects individuals’ rights and interests
- Eg of both - Practice Statement 1966 allows judges to alter precious decisions to fit with public perception of what is morally right
(Explain substantive area)
Examples of theories:
- distributive justice - according to Aristotle, is that of ‘treating equals equally’ and specifies how things, eg resources and opportunities, should be fairly distributed so everyone has a chance to thrive
- utilitarianism - Jeremy Bentham’s ideology where an act should be considered ‘just’ if it increases the sum total of human happiness
- social justice - John Rawls’ theory of ‘justice of fairness’ describes a society of free citizens holding equal basic rights and cooperating within an egalitarian economic system
- Karl Marx’s view that all laws of capitalism are unjust, and condemns all the institutions of capitalism including the criminal justice system in a fundamental way
- Nettleship v Weston - holds a learner driver to the standard of a reasonable fully qualified driver which many believe is unjust
Issues:
- great subjectivity of viewpoints - what one may view as just, another may view as unjust
- arises with issues regarding sentencing, as various people would hold a variety of opinions over the correct sentence to give those guilty of crimes
(Issues and evaluate substantive area)
Evaluate:
- complex idea which relies on individual subjective viewpoints on what a person holds to be morally right and fair
- positive - current way justice works + Practice Statement 1966
- issue - great subjectivity around sentencing
Law and society
Definition:
- law attempts to control society through regulation, requiring a clear set or laws that are freely and easily accessible to all
- Lord Bingham sets out in his book ‘The Rule of Law’ that the core principle is “that all persons and authorities within the state, whether public or private, should be bound and entitled to the benefit of laws publicly”
- law operates through a formal societal control through specific social agencies which form the criminal justice system, eg Parliament through acts of parliament
Significance:
- important as without societal control, there’s a likelihood of anarchy, which could mean some are less able to protect themselves (eg children, disabled people) - law discourages acts that are universally considered detrimental to society
- law is set out in accordance with public policy and is used as a mechanism of societal control, with the main purpose being it protects people from harm, as well as ensuring a common good in society to settle disputes and arguments via the justice system and institutions (eg state schools and NHS)
- law balances competing interests in society
- individual interests are protected using substantial civil law eg the provisions of Occupiers’ Liability in Tort balance interests as the occupier’s interest to carry on his business without hindrance is balanced with the visitor’s interest to not get injured on the premises
- due to the decline of family and religious institutions’ control over the individual, law is the paramount agency of societal control and while behaviors and manners are fluid and are as the culture defines them, laws are compulsory and enforceable
(Explain substantive area)
Examples:
- conflicting interests - eg a hungry man may steal to survive, but stealing goes against the interests of society and is balanced by making theft a criminal offence as per the Theft Act 1968
- likewise, society should be protected by murder through making it a crime, but the D’s rights are tempered by the availability of defences which can reduce a murder conviction to a MS in the absence of necessary MR or absolve D of all blame
- social engineering - Roscoe Pound’s 1942 book ‘Social Control Through Law’ states that individual, public and social interests overlap and claims that demands and desires can guide courts and express what individuals want the law to do
- conflicts between the individual and the state are generally dealt with by way of procedural law, eg the D’s interest when charged with an offence is protected by due process of allowing him access to free legal advice and a fair jury trial
- likewise, society’s interests are protected by sentencing guidelines, protection of witnesses and bail conditions
Issues and expansion:
- subjectivity - in a modern multicultural society, the interest and morality of major groups may not coincide with views of minor groups
- law may not reflect the views of whole population as prejudice and discrimination may withhold certain groups from the political process and prevent free expression of values and beliefs - discrimination can lead to other issues within the law
(Issues and evaluate substantive area)
Evaluate:
- controls society through providing legal framework that’s accessible to all and balances conflicting interests
- positive - law can be used to discourage acts that are universally considered as detrimental to society
- issue - this relies heavily on subjectivity and will be viewed differently by different cultures, and some groups may be withheld from the political process due to discrimination, leading to more issues within the law
Fault and harm
Definition:
- the level of wrongdoing or blameworthiness for an act which caused the prohibited consequence
- fault used as a way of measuring legal responsibility and assigning correct punishment based on level of fault
Significance:
- shows who is to blame
- both AR and MR need to be present at the same time and if fault is established, punishment will occur (eg mandatory life sentence for murder)
- theory: voluntariness of conduct, intention, subjective recklessness, strict liability offences…
(Explain substantive area)
Issues and expansion:
- can be wrongly or disproportionately applied, causing incorrect sentencing - somebody may be deemed at fault without the requisite MR, eg strict liability offences such as speeding
- a conviction for murder only requires intention, as to GBH, which can lead to a murder conviction even if they had no intention to kill
- in order to establish fault in criminal law, there must be a fair trial as it will establish the level of culpability the individual has
Examples:
- Tony Martin case - a trial established D was at fault as he did not use reasonable force as to the defence of self-defence
- key cases for theory
- fault was introduced in Cambridge Waters v Eastern Counties Leather
(Issues and evaluate substantive area)
Evaluate:
- fault is vitally important to criminal legal system as it determines who should be punished and what level of punished shall be given
- positive - backbone of the criminal justice system
- issue - can be wrongly or disproportionately applied, causing incorrect sentencing
