principles of criminal law Flashcards
harm principle (always include)
principle of harm important in creation of criminal offences and justifying the imposition of sanctions on those who are found guilty, in criminal law usually the most serious offences are the ones which involve harm to a victim
Harm: John Stuart Mill
created the harm principle, meaning a person is free to do what they wish and the law will only intervein if their actions cause harm to others
the meaning of harm is causing harm to others through physical or psychiatric injury or damage to property however it can be extended to causing fear of injury (assault)
law will not allow you to consent to serious injury as it is not in public interest (R v Brown)
Harm: Joel Fienberg
argues we should only punish actions that cause harm directly to others not merely those that offence societal sensibilities
you can also cause harm to yourself, self harm and substance abuse, consent to injury (tattoos, piercings), suicide and euthanasia, not all of these acts are criminal, suicide no longer a criminal offence
harm in society:
law recognises that you can harm society through hate speech or breaching moral principles R v Gibson where D freeze dried foetus’s and made them into earrings to put on a display, was liable for outraging public decency
Fair labelling
law should be made so that the elements of the offence are clear, level of offence should be in proportion to the type of offence. In our system offence fall under one of three categories summary, triable either way or indictable so offences can be labelled according to their seriousness
fair labelling: Douglas Husak
stated that distinctions amongst offence should reflect the nature and seriousness of the offence as mislabeling can lead to unjust consequences
fair labelling: Andrew Ashworth
emphasizes that fair labelling is essential for justice and that criminal law should avoid excessive labels that can create unnecessary stigma, murderer shouldn’t be labelled as a serial killer as this is not appropriate label under the law
correspondence
means that in criminal liability an appropriate match should be required between the D’s conduct, the consequences and state of mind, actus reus and mens rea must align
correspondence: Paul Robinson
theory or criminal liability emphasises the importance of correspondence between AR and MR arguing a D should only be liable if both are present
correspondence: Michael Moore
stated there must be a link between the AR and MR to establish blameworthiness
Maximum certainty
law should be as certain as possible any person should be able to determine in advance what conduct is or is not criminal and adjust their behaviour accordingly. Crimes which are not clear breach this principle
maximum certainty: HART
advocates that MC is essential for making the law accessible and understandable
maximum certainty: RAZ
supports this stating laws should be clear to allow for predictable outcomes and reduce arbitrary decisions
no retrospective liabilty
an individual should not be liable for actions that were not considered a crime at the time they were committed. It would be clearly unfair to convict the D of a new offence that was not an offence at the time it was committed
NRL: Kant
supported this idea,asserting it would violate the principle of justice if a person was to be held liable for actions that were not a crime at the time
NRL: Bentham
states that if a person was to be liable based on retrospective liability then this would undermine legal certainty and could lead to unfair consequences for individuals
NRL: general examples
R v R D convicted of raping his wife even though it was not an offence at the time he did it , MAY 2022 became illegal to use a mobile phone whilst driving, D cannot be charged with this if there is evidence from 2021
