introduction to criminal law Flashcards
What do we want from our criminal law?
1) - Specific offences that are clear, fair and comprehensive and that from a coherent body of law;
2) Non-discriminatory offences which have a clear rationale
3) A clear set of guiding principles to underpin the specific offences, and to provide for the resolution of conflicting interpretations
4) - Mechanisms to keep the law up to date, filling any gaps, removing outdates offences and meeting new social problems.
What was the Law Com’s proposal for the criminal law
The Law Commission’s Draft Criminal Code 1989
What did Lord Gardnier say about the Draft Criminal Code
‘I still hope to see my ideal statute. It will be a codification of the statute law in one field and existing case law. It will be written in ordinary simple words. It will be accompanied by a commentary explaining what are the things which it is intended to achieve’
What do we have in place of a draft criminal code
General principles laid down by common law, although some offences have been put on a statutory footing
Why is Parl sometimes reluctant to legislate?
This is mainly due to controversy about some offences including murder, which Parliament are reluctant to legislate on.
What has sometimes had an effect on common law being put into statute
The Human Rights Act 1989 has challenged the nature of the common law and has sometimes had an influence
What is the common law composed of?
The common law is composed of judicial decisions, drawing on institutional writes with each new decision being merely declarative.
Historically the common law was used to create new offences- how did Jeremy Bentham criticise this?
‘dog law’ - as a dog may be trained in a certain way but a person should be given fair warning in advance.
What does Art 7 ECHR enshrine
the principle of certainty- - the law must be established before any punishment can be imposed. Art 7 combines prohibition on retrospectivity with principles of ‘fair warning’ and certainty.
How did Dyson LJ in Muhamad summarise the principle of certainty?
‘the purpose of Article 7 is to ensure that those who are or may be subject to criminal sanctions have a sufficiently clear indication of what will or may be the consequence of their actions to enable them, if necessary after taking appropriate legal advice, to avoid that consequence’
Which case held that no new offences should be created at common law
Knuller v DPP (the crime of outraging public decency could be found at common law. However, the HL held that the court should not develop or create any further offences.
In which case was it stressed that the courts should not fill the gaps- this was the job for Parl
DPP v Withers: public mischief case, however the case failed in the HL on the basis that there was no such offence at common law. The HL stressed that gaps were for Parliament to fill and not for the courts to ‘dig up’ outdated legislation to ‘fill a need’.
What did Rimmington hold?
Where Parliament has legislated in an area previously covered by common law, only the statutory offence should then be used. This is due to the fact, the penalty for common law offences can be higher and the court generally has a greater level of discretion and that the common law should not be put to unorthodox used but should prefer slow incremental change and priorities the use of statutory offences
In which case was is said the common law should be used to respond to novel situations
Ireland
What is statute law
A body of primary and secondary legislation under which new offences may be created or repealed.
