Sources of criminal law

Question 1

What kind of law does the ECoHR have an impact on?

Answer 1

• Substantive criminal law

Question 2

What is substantive criminal law?

Answer 2

• Substantive law defines crimes and punishments in criminal law
• In contrast with procedural law ( puts procedures in place for enforcing the substantive law)

Question 3

Does the UK have a criminal code?

Answer 3

• No

Question 4

What countries do have a criminal code?

Answer 4

• Germany
• France
• Most US states

Question 5

What is a criminal code?

Answer 5

• A document that sets out virtually all criminal offences and provides it accessible so anyone cna look at it to see what the law is

Question 6

Where are laws and defences are set out?

Answer 6

• Common law

- Statutory law

Question 7

What can be found under common law?

Answer 7

• Decided cases where judges have defined the scope of the offences

Question 8

What can be found under statute?

Answer 8

• Some of the Law that is written down providing guidelines for judges and individuals to follow

Question 9

What are the arguments in favour of having a criminal code?

Answer 9

• Citizens should be allowed to understand and view the laws of their land
• Sometimes without it, it can be hard to find some laws when they’re needed

Question 10

What is the 2002 White paper set out by the government?

Answer 10

• In this was reforms set out within the criminal justice system
• However it would be so, so difficult as we would need a full library to understand the the laws of the UK
• It has been set out as a long term modernisation objective but is unlikely to happen very soon.

Question 11

What is the significant feature underlying case law and judicial decision making?

Answer 11

• Precedent

Question 12

An examples where there is only precedent available to define the scope of an offence?

Answer 12

• The scope for murder and manslaughter
• Self defence
• Duress
• Intoxication

Question 13

R v Clinton 2012

Answer 13

• COA had to decide the scope for LOC to a murder charge related to sexual infidelity

Question 14

Shaw and DPP 1962

Answer 14

• Shaw published a ladies directory including prostitutes adverts with naked pictures
• AND charged with common law offence of conspiracy to corrupt public morals
• He appealed on the basis the common law offence had never actually been used so was not an offence
• COA decided it was an offence so conviction upheld
• Courts have to be prepared for cases unprepared for

Question 15

What did Viscount Simonds say in the case of Shaw v dpp 1962?

Answer 15

• ‘A residual power in courts to enforce supreme and fundamental purpose of law to conserve not only safety and order but the moral welfare of the state’

Question 16

Knuller v DPP 1973

Answer 16

• HOL stressed that courts have very limited power agreeing with Lord Reed from the case of Shaw and DPP to create law
• Views have moved on from shaw and now the idea is that judges should not be creating law

Question 17

R v R 1991

Answer 17

• HOL decided marital rape exception was no longer part of English law
• Meaning of unlawful changed to something more current

Question 18

C v DPP 1996

Answer 18

• Young offender involved and before 1998 the idea was that children aged between 10-14 did not know the difference between right and wrong
• C was convicted of theft and the previous idea was abolished
• HOL then said it was not within the courts power to abolish the doctrine and so conviction overturned
• Then in 1998 parliament abolished the doctrine and changed it to anyone under 10