Introduction Flashcards
How can criminal law be distinguished from other areas of law?
(Hint: Glanville Williams)
Through the procedures it uses
- A crime is ‘an act that is capable of being followed by criminal proceedings having one of the types of outcome (punishment etc.) known to follow these proceedings’.
What is the problem with Williams’ definition?
It is circular
- What is criminal law? It is that part of the law which uses criminal procedures. What are criminal procedures? Those which apply to criminal law.
What are the roles of criminal law?
- Established state response to crime (how can this be seen?)
- Official moral censure
- Professor Ashworth: ‘criminal liability is the strongest formal condemnation that society can inflict’
What conduct is criminal?
- When the defendant has done an act which has caused a prohibited kind of harm
- When the defendant is culpable, worthy of censure, for having caused that harm
What kind of harm/acts is criminal law concerned with?
- Causing of direct harm to others
- Harm to, inter alia, the state, public morals and the environment
- Conduct which may not cause harm on a given occasion but endangers others
- Attempted crimes and acts which help other people commit crimes
- Protection of people from their own folly
What is J S Mill’s harm principle?
‘The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’
- Some conduct may be immoral, but if it does not harm others or harms only the actor, it is seen as unsuitable for punishment under the criminal law.
- The prohibition of non-harmful conduct is seen as too great an infringement on individuals’ liberty.
Lord Hobhouse in the House of Lords case of Rinks [2000] 3 WLR 1590 stated…
An essential function of the criminal law is to define the boundary between what conduct is criminal and what merely immoral. Both are the subject of the disapprobation of ordinary right-thinking citizens and the distinction is liable to be arbitrary or at least strongly influenced by considerations subjective to the individual members of the tribunal. To treat otherwise lawful conduct as criminal merely because it is open to such disapprobation would be contrary to principle and open to the objection that it fails to achieve the objective and transparent certainty required of the criminal law by the principles basic to human rights.
Why is it important to calculate the severity of harm?
- To determine whether certain conduct is sufficiently harmful for it to be criminalised
- To decide the hierarchy of offences
What is meant by culpability?
Since the censuring function plays an important role in criminal law, a defendant should be found guilty of a crime only when they truly deserve the stigma of a criminal offence, and so a higher level of blame needs to be shown in criminal rather than civil law
For less serious offences, it is common for there to be a requirement of only a low level of culpability, partly because there is a correspondingly low level of censure attached to such crimes
Why is the line between civil and criminal culpability becoming blurred?
As an example, anti-social behaviour orders are civil under the Crime and Disorder Act 1998, but breach of them amounts to a criminal offence (see Clingham v RB Kensington and Chelsea [2002] UKHL 39).
What presumptions does the law make in deciding if a defendant is to be blamed for her conduct?
That the defendant is responsible for both her actions and the consequences of her actions
What are the 4 main ways the law has of recognising that a defendant may not be to blame, or not fully to blame, for the harmful results of her actions, and so is not guilty of an offence?
- Exemption from liability
- Lack of capacity
- Lack of required mental state
- Special defence
