Principles Flashcards
Retrospective liability
Retrospective law means that when a law passes it applies to some time in the past. The issue with this is that it is changing the law in this way can change the nature of a person’s actions from being lawful at the time they were acting to unlawful at some future point. This is fundamentally unfair and demands that people are able to see into the future to avoid potential liability (something which is clearly impossible). If the criminal law is meant as a guide to minimum standards of behaviour and a deterrent to poor behaviour, retrospective legislation achieves neither of these goals. Further it undermines people’s faith in the justice system making it seem arbitrary and unjust. Having said this common law sometimes does operate in a retrospective way, for example when interpreting statute as clarification of the meaning of words may go back to the date the statute is written. However, it would be rare that this would create criminal liability for individuals. An example of a retrospective piece of common law was shown in R v R when the law was changed on appeal to remove the exemption for marital rape this meant that the defendant was held liable, even though when he committed the act it was not a crime. However, many would see this as justified since marital rape was so offensive to the common sense of morality at the time and therefore the D would know it was wrong.
Maximum certatinty
The principle of maximum certainty means that the law needs to be as precise and clear as possible. This means that people understand what the law is which enables them to modify their behaviour to ensure it complies, making society safer. In addition it prevents the state from arbitrary use of power, since any abuses of the law would be obvious, to all of society.
The law on non fatal offences frequently lacks certainty as a result of archaic and confusing language. For examples s.20 “grievous bodily harm” really means serious personal harm, but despite the use of the word “bodily” in the act, the offence is extended to psychiatric harm. This is only made clear by caselaw. However, this is not clear just by reading the act and could lead to someone causing serious psychiatric harm arguing, incorrectly that they are not guilty of the offence.
The clarity and certainty of law can be improved through modernisation and codification, proposals to improve this have been made by the law commission.
Correspondence principle
The Correspondence rule states that the actus reus and the mens rea should be of the same level. The reason for this is that if the offence is one of constructive liability (i.e. correspondence doesn’t apply) the defendant is held liable for harm they may not have foreseen and this means they lack fault and so it is unjust. An example of an offence where the actus reus corresponds is s.18 GBH, in order to be guilty the D must have caused really serious harm and must intend really serious harm. However, some academics argue that this is not a principle that is either consistent or desirable in English law. It can be argued that constructive liability makes it easier to establish guilt when the defendant has pursued a criminal path and the outcome was more serious than intended. In this way it protects the public and provides justice for the victim.
Fair labelling
Fair labelling is the idea that the name of the offence ought to accurately describe the offence and give an indication of the severity of the offence. This in turn means that the sentence should align with the label. If this does not happen it is possible that the defendant is unfairly stigmatised with a label that is seen as more serious than it really is. In addition it undermines faith in justice as it may make it seem that the system is unduly lenient. An example of an offence that does not achieve fair labelling is Assault. This is commonly thought of as involving physical attack rather than just a threat. As a result the proposals for amending the law have suggested re-labelling it as threatened assault. Another issue is where the name of the offence is archaic or outdated for example assault occasioning actual bodily harm, is both somewhat outdated but also misleading, since it does not require “bodily” harm since psychiatric harm is acceptable.
