Introduction To Criminal Law

Question 1

What is Criminal Law?

Answer 1

A body of obligations, mostly prohibitive, some affirmative, backed/enforced by the coercive power of the state for the key purpose to maintain a relatively safe, orderly and peaceful society.

Question 2

General Principals of Criminal Law

Answer 2

No One subject to arbitrary or extra-judicial punishment (Magna Carta 1215)
Right to a fair trial (UDHR 1948, 10)
Presumption of innocence (UDHR 1948, 11)
Equality before the law (UDHR 1948, 7)
Burden of proof lies with the prosecution (with exceptions such as mental incapacity)
Standard of proof beyond reasonable doubt
Presumption against retrospective laws (UDHR 1948, 11(2))
Prohibited conduct must be clearly set out
Ignorance of the law is no excuse
Discretion

Question 3

What is a crime?

Answer 3

1. Is the conduct prohibited?
2. Is the consequence of engaging in the conduct punishment?

Lord Aitken

Question 4

What is the purpose of Criminal Law?

Answer 4

To regulate society, individual conduct
To transmit values 
To create a safe, peaceful society
To restrain the state, to ensure individual liberty from arbitrary wielding of power.
Protect citizens as their property from harm
To deter crime
Retribution
Rehabilitation
Incapacitation (Kable; Fardon)

Question 5

What is the role of the jury?

Answer 5

To arrive at the truth from the FACTS (not the law - that is the domain of the judge).

Question 6

How do we decide what behaviour should be prohibited and punished by the criminal law?

Answer 6

Normative foundations:

Harm principal - Criminal Law should be limited to conduct which harms others, to preserve maximum individual autonomy, JS Mill;

Conduct which is morally wrong (Lord Devlin) - ‘… a vice so abominable that it’s mere presence is an offence.” Based on ‘the genuine feeling feeling of the society in which we live.’ * May have been accepted in the past however society is more diverse, with often conflicting moral values. Governing what is right and wrong by these standards places minority groups at risk of discrimination.

Utilitarianism: Jeremy Bentham - for the greater good of society.

• content of criminal law is historically and culturally variable;
• there are changing conceptions of what should be criminal:
  Rape within marriage legal until 1980’s
  Consensual homosexual activity was still criminal in Tasmania until 1997;
  Abortion still technically criminal in NSW

*what about incest? this challenges our ideals regarding consensual adult relationships and what should be criminal. a moral question