Criminal Theory: Lesson 27 Flashcards
What are the factors in criminalising conduct ?
- What is the basis of criminalising conduct
- How far should individuals have the autonomy to do what they wish or should welfare of community take priority
- What principles should be used when framing rules of criminal law
Key points on harm as the basis for criminalising conduct
- Everyone in community has right to be free from harm
- Illustrated by having offences like murder, manslaughter & non-fatal offences
- Harm can be caused to public security
What is paternalistic law?
View that some conduct should be criminalised in order to protect us from doing harm to outprselves
What’s an example of a paternalistic view?
Supply of drugs like Cocaine and Heroin is illegal
- They’re addictive
- Deprive people of control of their live in the long term
- Leads to more crimes
When is paternalistic law not consistent?
- When illegal conduct is carried out in private between consenting adults
- R v Brown 1994
What happened in R v Brown 1994?
- 5 men convicted for involvement in consenting sadomasochistic sexual acts over 10yrs
- Key issue was whether consent was a valid defence to assault to which they answered negative
What did Lord Slynn say about R v Brown 1994?
It’s not for the courts in the interests of paternalism or to protect people from themselves
What happened in R v Wilson 1997?
- Husband branded his wife with hot knife at her request
- He pleaded guilty & the judge considered him bound by R v Brown
- Court of Appeal held that there was no unlawful act even though she had to seek medical attention
- Court decided it such consensual behaviour shouldn’t be criminalised
- Act of ‘personal adornment’
Key points on R v Brown & R v Wilson
- House of Lords failed to set precise guideline for where defence of consent should succeed
- This failure could lead to laws being applied unequally to homosexuals or other minorities
- Opposingly because parliament failed to set law judges have to set standards of behaviour. If Parliament felt judges had taken too paternalistic approach they could legislate
What is legal moralism?
- Conduct is wrongful if it’s morally wrong
- Theory that laws may use to prohibit or require behaviour based on society’s collective judgement on whether it’s moral or not
- R v Hinks 2000
- R v Brown ruling
What happened in R v Hinks 2000?
Laws may only be used if they promote liberty
What is Legal liberalism?
Laws may only be used if they promote liberty
What’s another example of legal moralism?
Shaw v DPP 1961
- D published book with names & addresses of prostitutes, photographs and details of services
- Charged with conspiracy to corrupt public morals
What autonomy of the individual?
- Individual should have freedom to do what they want, where they want, when they want
- Attempt to limit autonomy should only be when it limits harm
- Autonomy means individuals should be treated as responsible for own actions
What does limited autonomy mean?
Some groups ability to make choices is considered less than a competent adult
- Under 18s
- Those suffering from mental disorders
Key points on attempted suicide
Commiting suicide isn’t a crime, but assisted suicide is as it takes away autonomy of a disabled person to choose to take their life
