The Rules Of Criminal Law Flashcards
Defining a crime
It is difficult to have a general definition of a crime with such a wide range of criminal of fences. However, one way of defining it is to say that it is conduct which is:
“Forbidden by the state for which there is punishment”.
What is considered criminal will change over time for various reasons.
Role of the state
Criminal law is mainly set down by the state. This can be by passing an Act of Parliament or by the issuing of regulations.
A breach of criminal law can lead to a penalty, such as imprisonment or a fine, being imposed on the defendant in the name of the state. Bringing a prosecution is usually seen as part of the role of the state. The majority of criminal prosecutions are conducted by the Crown Prosecution Service (CPS) which is the state agency for criminal prosecutions.
Conduct criminalised by judges
In the vast majority of offences, the state decides what conduct is considered to be criminal, some conduct is criminalised by judges rather than the state. This occurs when judges create new criminal offences through case law (common law). This law is made through the system of Judicial Precedent (R v R 1991).
Elements of a crime
For all crimes (except those of strict liability) there are two elements which must be proved by the prosecution. These are the actus reus and the mens rea.
They come from a latin maxim which means ‘the act itself does not constitute guilt unless it is done with a guilty mind. To be guilty of an offence, both must be proven.
Mens Rea (MR):
This is the mental element (quilty mind or the fault element in an offence.
The levels of ‘guilty mind’ required for different offences vary from the highest level, which is specific intention to much lower levels, such as negligence or knowledge of fact.
Actus Reus (AR):
This is the physical element’ of what they have to do depends on each crime.
It can cover acts, omissions or a state of affairs. The conduct must be voluntary and the actus reus includes any required consequences caused by the prohibited conduct.
Strict liability offences
There are some crimes which are an exception to the general rule that there must be both actus reus and mens rea present. These are crimes of strict liability, where the prosecution need prove only the actus reus; no mens rea element is needed for guilt. They tend to focus on offences involves public safety E.G health and safety legislation.
Roles of Defence
If a defendant has done the required act for an offence, there are a number of general defences that may be available which will lead to a ‘not guilty’ verdict if successful. These include intoxication, self defence and duress.
Rules governing the standard and burden of proof
In criminal cases an accused person is presumed innocent until they are proven guilty.
The burden of proof on the prosecution. They CPS
must prove the case by proving both the actus reus and the mens rea of the offence charged.
The standard of proof necessary in order for the defendant to be found guilty is “beyond all reasonable doubt”. This is usually explained by the judge telling the jury that they should only convict the defendant if they are sure of the defendants’ guilt.
In civil cases it has to be proved only on the “balance of probabilities”. This is a lower level than that in criminal cases because in criminal cases the defendant is at risk of losing his liberty if he is found guilty.
Theory of Criminal Law
Factors in criminalising conduct:
- when deciding what behaviour should be criminalised
Harm as a basis for criminalising conduct:
- everyone has the right to be free from harm.
- having offences which act against those who cause harm. E.g,. murder, manslaughter.
Autonomy of the individual:
Means that the individual should have freedom to do what they want, where they want and when they want.
Fault:
In deciding whether a defendant is to be blamed for their conduct.
Individual responsibility:
No one may be convicted of an offence except on the basis of their own individual criminal responsibility.
Fair labelling:
That the offence of which a person is convicted must correctly describe the crime that has been committed.
Correspondence:
Is that where the actus reus and the men’s rea do not correspond.
Maximum certainty:
The law should be as certain as possible if it isn’t known what elements constitute a crime, then it isn’t fair that the person convicted of the crime.
No retrospective liability:
Where the particular conduct is not an offence at the time, the defendant does the conduct, then it is clearly unfair to convict of the offence.
