Theory Flashcards
Justice 01.
Justice is fairness, equality and even-handedness, so includes treating cases alike, showing impartiality and acting in good faith. Substantive justice is concerned with the end result.
Distributive justice is about the allocation of wealth, rights, and responsibilities in terms of both the benefits and burdens, so that everyone within a society gets a fair share.
Justice 02.
Aristotle’s view was that a just state distributes these things in a way proportionate to people’s contribution to society, so the worthiest are rewarded with the largest share. He considered rewarding people based on their needs unjust, as it would reward the laziest. For example, those who work more years or contribute more to a pension scheme from a higher salary receive a larger pension than those who have worked fewer years or contributed less from a lower salary. However, Aristotle’s theory does not consider peoples need, where those in need cannot contribute as much such as disabled or sick people, so they will get less which may seem unjust especially when they may need resources such as treatment.
Justice 03.
Marx thought that each person should maximise his or her contribution to the common wealth by making full use of his or her abilities, and each should receive according to his or her need, irrespective of their personal contribution. Critics of Marxs point out that he rewards the undeserving poor too.
Justice 04.
Utilitarians such as Bentham and Mill, on the other hand, regard justice as being concerned with the greatest happiness for the greatest number. An example of utilitarian reasoning is the way in which the state (via the NHS) decides whether funding a particular drug would benefit enough people to be worthwhile.
Justice 05.
Critics point out that utilitarianism may result in the ‘tyranny of the majority’ at the expense of individuals. For example, when Stefan Kiszko was wrongly convicted of murder, it made the community feel safe but did him a terrible injustice.
Justice 06.
One way in which our legal system achieves procedural justice is through the right to appeal. For criminal cases in the Magistrates Court, D can automatically appeal to the Crown Court (sentence/conviction) or the High Court (point of law). From the Crown Court D can appeal to the Court of Appeal. In Thornton D appealed on the grounds of new evidence and was allowed a retrial – D must have permission to appeal based on the merits of his case.
Justice 07.
Even with a procedurally just right of appeal, injustices still arise. Innocent people are still serving long prison sentences for crimes they have not committed. The Guildford Four served 15 years in prison before being released following quashed convictions after it was discovered the police falsified the statements.
Justice 08.
One example of substantive justice can be found in the general defences in criminal law, which achieve justice by convicting only those who have acted voluntarily. In Hardie, D’s conviction was quashed as the unexpected effect of a drug meant that D was not acting voluntarily.
Justice 09.
However, sometimes legal rules fail to achieve justice. For example, the mandatory life sentence for murderers allows no judicial flexibility to recognise different levels of seriousness of offence. In R v Canning the trial judge described D’s sentence as ‘a classic example of injustice’.
Harm 01.
Mill put forward the idea that harm to others is the only justifiable basis for imposing criminal liability; everyone in a community has the right to be free from harm.
Harm 02.
We criminalise conduct which causes harm to others e.g murder and GBH. Property offences may be seen as less serious but still cause harm to the victim. Harm can also be caused to the wider community, terrorism, for example, does harm to public security.
Harm 03.
Regulatory offences, which are often ones of strict liability, deal with the risk of harm to the public by dealing with issues such as pollution (Alphacell v Woodward), food hygiene, ect.
Harm 04.
H.L.A Hart argues that stopping someone from harming themselves can also be a basis for criminalising conduct. This is known as paternalism. For example, supplying drugs such as cocaine and heroin is illegal as these drugs are addictive and in the long term do harm by depriving people of control over their lives.
Harm 05.
Where consenting adults participate in potentially illegal conduct, the law is not consistent. In R v Brown consensual activities carried out in private were ruled criminal even though no one complained to the police, and no one needed medical treatment, and D’s were convicted of ABH under s47 OAPA. The majority were concerned with preventing harm – the dissenting judges saw this as too paternalistic.
Harm 06.
In contrast, in R v Wilson D branded his initials on to his wife’s buttocks using a hot knife at her request. Even though V was badly hurt enough to be taken to hospital, the Court of Appeal ruled that it was not in the public interest that consensual behaviour should be criminalised, comparing it to an act of ‘personal adornment’ like tattooing. This decision is more libertarian in nature, reflecting the idea that acts between consenting adults in private should not be the business of the law even if they cause injury, thus placing less emphasis on harm.
Harm 07.
Critics of the decision in Brown describe it as paternalism by an unelected, unrepresentative group who use but fail to acknowledge their power, and argue that the lack of clear guidelines could lead to the law in this area being used against minority groups who do not have the sympathy of judges. On the other hand, if Parliament do not legislate it, then it is left to the judges to set standards of behaviour, and Parliament can always reform the law here if desired.
Harm 08.
Legal moralists such as Lord Devlin would argue that criminalising conduct on the basis of its lack of morality – rather than needing to establish harm – is justifiable as society’s shared morality holds it together, so we should criminalise immoral conduct for social preservation. However there is little evidence that society ‘falls apart’ as moral values change. The opposing view is legal liberalism, which holds that laws may only be used if they promote liberty.
Harm 09.
Brown is an example of legal moralism, which was objected to by the judges in the minority. The majority view reflects this due to their belief that the consensual sex was morally impermissible and possible of corrupting others. Another example is the majority decision in R v Hinks criminalising a gift that was valid in civil law as theft because It was morally wrong. Lord Hobhouse described this in his dissenting judgement as ‘contrary to principle.’
Fault 01.
Fault is the common threat which runs through English law, and is a form of wrongdoing. It usually ensures that the person at fault has legal responsibility for their actions. Sometimes a person can be at fault even if the offence or action carried out is termed ‘no fault’.
Fault 02.
In criminal law there is a general presumption that liability is based on fault. A person should not be held liable for a criminal offence unless they are to some extent at fault. This underpins the requirement for mens rea; it is what is inside one’s mind that distinguishes between an accident and a criminal offence. This is why to be criminal an act must be voluntary in nature (Hill v Baxter).
Fault 03.
Causation in criminal and civil law also shows how fault is a basic requirement of liability. In R v White D was not guilty of murdering his mother even though he had poisoned her as she had instead died of a heart attack. This shows that fault is seen as essential even where the public opinion may not approve.
Fault 04.
However, the law provides a choice of offences to reflect D’s degree of fault, so in White D could be charged with attempted murder. The but for test also applies in civil law, although here an alternative action may not be available where causation is not satisfied as in Barnett v Chelsea Hospital.
Fault 05.
Defences such as self-defense demonstrate that even where D has both actus reus and mens rea of an offence, he may still not be at fault. Similarly, the partial defences to murder reflect that not all killings are equally blameworthy, such as where D has diminshed responsibility. The level of fault perceived results in a lesser, but still serious offence of voluntary manslaughter.
Fault 06.
Strict liability offences impose liability even where D lacks mens rea. However it can be argued that the actus reus still has an element of fault – for example where D is reponsible for what is sold in their shop as in Harrow LBC v Shah. S43(1) of the Criminal Justice Act 2003 requires the court to consider the offenders ‘culpability’ ie. Fault when sentencing, even for strict liability offences.
Fault 07.
In most areas of tort, liability will only be imposed where a party is at fault. For example, negligence relies on the defendant breaching a duty of care owed to the victim; this breach is where the fault is.
