Rules Of Criminal Law

Question 1

What is a crime?

Answer 1

• theft
• robbery
• murder
• manslaughter
• fraud
• bribery
• blackmail
• rape/sexual assault
• drug dealing
  Etc

Question 2

Defining criminal law

Answer 2

• a body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare that establishes punishment to be imposed for the commission for such act. The term criminal law generally refers to substantive criminal laws

Question 3

Problems with defining crime

Answer 3

• changing attitudes. What may have been considered criminal in the past may no longer be

Question 4

Theory of criminal law and the role of the state

Answer 4

• what can be considered criminal? Relationship between morality and the law - quite subjective
• acts that are essentially criminal are sometimes blind sided by juries
• retributive justice = focus on the punishment for crime
• corrective justice = liability rectifies the injustice inflicted by one person to another
• a form of social control
• criminal law is set down by the state
• the state brings forward prosecutions and imposes penalties on offenders, however private organisations can also bring forward prosecutions

Question 5

When can judges create criminal law setting precedents?

Answer 5

• when the lad doesn’t appear to cover a particular matter, the judge can rule to criminalise it
  In shaw v DPP, the House of Lords decided that in publishing a directory advertising prostitutes and their ‘services’ the defendant was guilty of ‘corrupting public morals’
• the same happened in r v r, when the House of Lords criminalised rape within marriage

Question 6

What are the elements of crime?

Answer 6

• actus reus - refers to the alleged act itself
• menus Rea - the metal element of the act of the degree or intent
• both of these elements must be together to constitute the offence, however if the act is ongoing the presence of men’s Rea at any point can be proved, that is sufficient
• if there is valid defence however, even if actus reus means Rea are both there, the defendant may still be found not guilty

Question 7

Strict liability

Answer 7

• in strict liability cases, the prosecution only has to prove actus reus
• a driver who is over the limit may not realise he is over the limit, but he is still committing a criminal offence
• similarly, a newsagent that seeks alcohol, cigarettes or lottery ticket to somebody underage may not know they’re doing so, but they are still breaking the law
• statutory rape may also be seen as a structural liability issues

Question 8

Defences

Answer 8

• offences (both fatal and non fatal) committed by the defendant can sometimes include a number of factors that could lead to a ‘not guilty verdict’
• insanity
• automatism
• intoxication
• duress
• necessity

Question 9

Duress and necessity

Answer 9

• duress and necessity are not defences for murder. Intoxication can only be used as a defence when the defendant DID NOT HAVE the required men’s Rea

Question 10

Standard proof and burden of proof

Answer 10

• standard burdens of proof in criminal cases needs to be ‘beyond reasonable doubt’ in order to convict
• burden of proof is on the prosecution to prove that the atcus reus and mens Rea were both there when the offence was committed
• until that can be proved, the person is presumed innocent
• there are rules around these matters in English law:
  1. It is up to the prosecution to prove the case
  2. This rule applies to all criminal cases
  3. The rule must be applied in any criminal court
  4. Guilty must be proved beyond reasonable doubt
  5. Any reasonable doubt can be raised from either the prosecution of the defence

Question 11

Raising a defence

Answer 11

• if the defendant wishes to raise a defence, he can
• in Wilmington, the defendant raised the defence of accident therefore the obligation was on the prosecution to disprove this
• it up to the trial judge to advise the jury to acquit unless they are statisifes that the evidence provided by the defence has been disproved by the prosecution
• in certain cases, such as pleading insanity, there is a reverse onus on the defendant to prove his case
• there are also some other expectations where the burden of proof is on the defendant where defences have been created by statute
• e.g, dismissed responsibility. Parliament passed a statute in 1957 that states on a charge of murder, it is up to the defence to prove diminished responsibility in order to avoid conviction