Rules And Theory Of Criminal Law

Question 1

What is the starting point for having criminal law?

Answer 1

Everyone in a community has the right the right to be free from harm

Question 2

Give some examples of offences which cause phyical harm to others

Answer 2

Murder, manslaughter and non-fatal offences

Question 3

Give some examples of offences which cause harm to the wider community

Answer 3

Terrorism as well as property offences which are less disruptive to a community

Question 4

What is the purpose of regulatory offences

Answer 4

To deal with the risk of harm to the public by dealing with issues of pollution, selling food which is past its ‘sell by date’ or by selling products to under age children

Question 5

What does paternalistic law mean?

Answer 5

The view that some conduct should be criminalised in order to protect us from doing harm to ourselves

Question 6

Give an example of a paternalistic law

Answer 6

The supply and use of heroine and cocaine is illegal

Question 7

Explain why the majority decision in R v Brown displayed a paternalistic approach to law making and why the decision in the court of appeal in R v Wilson displayed a more libertarian view

Answer 7

R v Brown - mens conduct was ruled to be criminal even though no one complained to the police and the activities were carried out in private
R v Wilson - acts between consenting adults in private, even those which cause injury, should not be the business of the law

Question 8

What is one criticism of he decision in R v Brown and one in favour of the decision in R v Brown

Answer 8

Criticism: the decision was based on the fact that they were homosexuals
In favour: paternalistic view - we shouldn’t harm one another

Question 9

What is legal moralism?

Answer 9

Laws may be used to prohibit or require behaviour based on society’s collective judgment of whether the behaviour is moral or not

Question 10

Give examples of some which displayed legal moralism

Answer 10

R v Brown
R v Hinks

Question 11

What does autonomy of the individual mean?

Answer 11

An individual should have freedom to do what he or she wants, where he or she wants and when he or she wants

Question 12

Which groups of people have limited autonomy?

Answer 12

Those under 18 and those suffering from a mental condition

Question 13

What are examples of the law protecting groups?

Answer 13

The prohibition of selling products to children below specific ages and prohibiting sexual activity with children under specific ages

Question 14

In which area of the law is it suggested that autonomy of the individual is not respected?

Answer 14

Assisting suicide where the person is so physically disabled that he or she can’t commit suicide themselves and need assistance to do so

Question 15

Normally the criminal law holds people responsible for their actions - what are 5 areas of law where a person is not held responsible for their actions?

Answer 15

1. Children under the age of criminal liability
2. An involuntary act
3. If a person commits an offence in a state of automatism
4. If a person lacks the MR for an offence
5. Some cases when he/ she is said to have the necessary mental state but shouldn’t have been blamed

Question 16

What category of offences are ‘no fault’ offences?

Answer 16

Strict liability offences

Question 17

What does fair labelling mean?

Answer 17

The offence which a person is convicted must correctly describe the kind of crime that has been committed

Question 18

When is it unfair to label a person a murderer?

Answer 18

When he/she didn’t intend to kill

Question 19

What is an example of fair labelling in relation to non fatal offences?

Answer 19

Assault causing ABH and inflicting GBH - the level of harm by each offence is clearly described and differentiated

Question 20

Explain why theft is an offence is an example which has clear correspondence

Answer 20

It is clear that the mental element or theft directly relates to the AR

Question 21

Explain why murder, unlawful act manslaughter, S47 and S20 don’t comply with the principle of correspondence

Answer 21

Murder - a person should be guilty if he/she intends to kill. The mental element would correspond with the AR by referring to the consequence of death
Unlawful act manslaughter- MR of the offence doesn’t require any recognition on the part of the accused that his or her conduct was likely to cause harm
S47 and S20 - liability may be incurred where the harm j tended or foreseen by D was less than the harm caused

Question 22

Why is it important that there is maximum certainty in the legal system?

Answer 22

If it’s not known what elements constitute to a crime then it is unfair that a person can be convicted

Question 23

Give examples of cases where the law was not certain

Answer 23

DPP V Shaw
R v R

Question 24

Explain what is meant by retrospective liability

Answer 24

Where the particular conduct is not an offence at the time D does the conduct then it’s clearly unfair to convict the offence

Question 25

Describe how the war crimes act 1991 did impose retrospective criminal liability

Answer 25

He or she could be prosecuted for a war crime carrie out in Germany during WW2 regardless if his or her nationality at the time from 1990 onwards

Question 26

Describe a case which had retrospective liability

Answer 26

R v R - D raped his wife and said that it wasn’t rape because they were married when he committed the offence. When this case happened consent in marriage was not law and so he had not committed an offence at the time of the rape however when the law was introduced D was found guikty