Theory of Crime Flashcards
Harm principle
The starting point of having a criminal law is that everyone in the community has a right to be free from harm, thus harm principle is made to protect people from harm. Many criminal offences are those where a person has caused harm to others, i.e Murder, GBH, Psychiatric Harm. Alternatively, damaging property, theft.
Paternalistic view of harm, this is where conduct should be criminalised to prevent us from doing harm to ourselves. Examples: Offences relating to the supply of certain drugs, illegal because drugs are addictive, leading to addiction and leading to a terrible effect on the health of the addicts. Or R v Brown: sadomasochistic men were convicted of ABH and s20 – they were not entitled to use the defence of consent, with the court stating that “society is entitled and bound to protect itself against a cult of violence” i.e. you cannot consent to harm.
Liberal view of harm - THEORIST: John Stuart Mill developed the harm principle as the appropriate test to be used to determine where society should, or should not, be permitted to interfere with individual liberty. He argues that society can only intervene where the individual’s conduct harms others i.e smoking in a public place, workplace or in vehicles where children are present – cigarettes are allowed despite the fact they damage your health, however smoking has been banned in places to prevent harm to other. Case - R v Wilson: the court held that acts done by consenting adults in the privacy of their own home should not be criminalised
Autonomy of the individual means that an individual should have freedom to do what they want, where they want and when they want.
Any attempt to limit autonomy should only be where it is necessary to limit harm. i.e age limits on certain products, age of consent for sexual activities for those under 18.
Fair labelling
Fair labelling means that the label given to an offence should match the moral condemnation of it, eg it could be argued to be unfair to label someone a murderer if they did not intend to commit murder. A crime has a moral stigma attached to it, something which can effect employment, migration, even citizenship.
Another principle is that the punishment must be proportionate to the offence committed.
It is important that there are different labels to differentiate between offences committed, fair labelling is upheld such as in: i.e 1) causation: aimed at achieving fair labelling because if there is a break in the chain of causation, the defendant cannot be labelled as a criminal as it would be unfair, 2) Transferred malice helps to ensure fair labelling, because having the mens rea of a crime makes someone culpable even if the victim was someone other than the one intended.
Fair labelling is not always achieved, eg AR and MR of ABH and s20 do not correspond, so an individual is being labelled as having committed those crimes despite the fact they they don’t have intention for it.
That said, there are safeguards to ensure fair labelling within law such as: Innocent until proven guilty, concept of a fair trial, jury deciding guilt in all cases heard within the Crown Court.
Correspondence principle
The prosecution not only has to prove that D committed the AR, but also the MR for the offence. From this comes the principle of correspondence, where the MR should correspond to the AR specified for that particular crime. The purpose of the correspondence principle is to prevent unfair labelling of a defendant who does not intend or forsee the elements of the AR. Therefore, the liability of the accused should not exceed harm included in the MR.
This can be seen in the following example: If the defendant intended an assault, their liability should not exceed the offence of assault. Other examples include : The MR of Murder includes an intention to cause GBH, therefore D being convicted of murder when they did not intend for murder as a consequence. Unlawful act manslaughter does not require the defendant to have foreseen that their conduct would cause harm.
Maximum certainty
The law should be as certain as possible, if it is not known what elements constitute a crime then it is not fair for a person to be convicted of that crime, this would be against the rule of law. Important as this protects individuals from arbitrary abuse of power by the state, and it allows them to determine their own behaviour so that they do not break the law. Examples of where the law can be said to be uncertain include:
R v Misra and Srivastava: defendants challenged their conviction for GNM on the basis that the elements needed for the offence were uncertain, following findings from a Law Commission Report which found that GNM failed to meet the standard of certainty required.
DPP v Shaw: The outcome of this case was uncertain as the offence to corrupt public morals did not exist until the court passed judgement
R v R: HL changed the law to criminalise marital rape – this made the law uncertain as individuals could now be found guilty for something which was not a crime when they committed it.
Non-retrospective liability
Oxford English Dictionary defines retrospective legislation as: ‘legislation that operates on matters taking place before its enactment, e.g., by penalising conduct that was lawful when it occurred’.
To penalise such conduct after the event would seem to most people to be unfair. Parliament is reluctant to introduce such laws, yet sometimes considerations of public policy outweigh this.
The idea of not being liable retrospectively is set out in Article 7 of the ECHR: no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
Some exceptions to this include - War Crimes Act 1991 - this provided that if a person was a British citizen or a UK resident from 1990 onwards, they could be prosecuted for carrying out war crimes in Germany during WW2, regardless of their nationality at the time.
