Q9 Topics Flashcards
What is the definition for justice
- means fairness, definition attributed to Aristotle
- dictionary - justice is ‘being just’ but this is subjective
What is the definition for law
- john Salmon defines law as a ‘command from a sovereign source’
- meaning it is a set of rules that must be followed
What is the relationship between law and justice
- law can be just or unjust - meaning they are not always the same
- statue of lady justice holding scales of justice symbolises equality before the law
- some laws are designed to promote fairness in society
- the law includes review processes to help correct wrongful convictions
Outline the theories of justice
- Aristotle divided justice into distributive (fair resource distribution to society) and corrective ( fixing injustices)
- utilitarianists (Bentham) see law as just if maximises happiness and minimises pain for the majority
Outline examples of justice
- distributive justice - availability of legal aid in criminal cases
- corrective justice - seen in sentencing and awarding damages
- smoking ban - protects the majority from smoking dangers
- standard of care - helps achieve justice in civil law
What is the definition For fault
- fault is responsibility for wrongdoing or errors due to ignorance, bad judgement or in attention
- it is a key element in English civil and criminal law
- some legal systems like New Zealand, operate on a non fault basis
What is the relationship between fault and law
- in criminal law, an act must have fault to be a crime, without fault, it is an accident
- strict liability offences exist to regulate society and protect the vulnerable
- breach of duty constitutes fault, judged by the standard of the reasonable person
What are the theories of fault
- fault has always been a part of criminal law, with penalties for causing harm due to fault (thought strict liability offences limit this)
- negligence is mainly based on fault but before 1994, fault was not always required for damages (Cambridge water v Eastern)
What are some examples of fault
- Froom v Butcher - liability reduced to fault by the claimant (C)
- different levels of fault:
Intentional killing results in murder charges
R v Janjua and choudhury vs R v Adomako show contrasting levels of fault in criminal cases
What is the definition for correspondence
- when the actus reus and men’s Rea should correspond
- liability of the accused should not exceed the harm actually encompassed by his/her men’s Rea
What is the relationship between law and correspondence
- ensures a person is only convicted if their intention or recklessness aligns with the harm caused
Outline the theories of correspondence
- the strict correspondence theory argues the men’s Rea must exactly match the actus reus for a conviction
Outline examples of correspondence
- in theft, the actus reus is that D must appropriate property belonging to another person, the men’s Rea is D must intend to permanently deprive. So mental element of theft relates to actus reus
- murder does not comply with the correspondence principle - the men’s Rea = intend to kill/cause GBH. The the offence to comply with the correspondence rule, a person should only be guilty of murder if they INTENDED to kill
What is the definition for fair labelling
- means the offence of which a person is convicted must correctly describe the crime committed
What is the relationship between law and fair labelling
- there is moral stigma attached to crimes so the crime the individual is convicted of must carry a ‘fair’ label
- it is unfair to label a person a murderer if they are not one
What are the theories of fair labelling
- fair labelling principle is linked to the correspondence principle
What are examples of fair labelling
- can be seen by comparing the offences of assault causing ABH and inflicting GBH (S18 +20)
- the level of harm in each offence is clearly described and differentiated
What is the definition for maximum certainty
- the law should be as certain as possible
- if it is not known what elements constitute a crime then it is not fair to convict a person of the crime
What is the relationship between law and maximum certainty
- maximum certainty aligns with the rule of law which states law must be known and accessible
- ensures laws are clear, precise and predictable
What are the theories of maximum certainty
-Tony honore (in his book - ‘about law) - stated ‘a person should not be punished… except for a crime defined by law in advance’
What are examples of maximum certainty
- offences are not often challenged for uncertainty but some examples of cases that were are as follows:
- DPP v Shaw - the offence was uncertain/unknown until a final decision in the HOL
What is the definition for no retrospective liability
-where the particular conduct is not an offence at the time that D does the conduct, then it is unfair to convict of the offence
- this idea of not being liable retrospectively of a crime is set out in the European convention on human rights article 7
What is the relationship between law and no retrospective liability
- this prevents a government from creating a law to make a person guilty even though the act was not an offence when it was done
Outline examples of no retrospective liability
- one law that did create retrospective criminal liability was the war crimes act 1999
- this provided that if a person was a British citizen/ uk resident from 1990 onwards, he/she could be prosecuted for a war crime carried out in Germany during ww2
