Theory Of Criminal Law

Question 1

Define criminalising conduct + state the 3 factors that should be considered in criminalising conduct.

Answer 1

• Behaviour a person does thats considered a crime.
  3 Factors:
  1) What ought to be basis for criminalising conduct?
  2) How far should individuals have autonomy to do what they wish?
  3) What principles should be used when framing rules of crim law?

Question 2

Explain harm as a basis for criminalising conduct.

Answer 2

1) Community has right to be free from harm
2)** Through offences against those who cause physical harm to others
**3)* Harm can be to public security - regulatory offences (including strict liability offences).

Question 3

Explain harm - paternalistic law.

Answer 3

• Conduct criminalised to prevent us from doing harm to ourselves (e.g. drugs)
• Brown v Wilson: law of consent - can only consent to minor ABH injury.

Question 4

Explain harm - legal moralism.

Answer 4

• Conduct is wrongful if it’s morally wrong.
• Laws prohibit / require behaviour based on society’s collective judgement of whether behaviour’s moral or not.

Question 5

Explain the autonomy of the individual + limitied autonomy.

Answer 5

• Individual should have freedom to do what they want, when they want, + where they want.
  Limited Autonomy:
• Group of people deemed as less competent - thus have less freedom to make choices (e.g. those under 18 - prohibiting selling products to children below certain ages).

Question 6

Define fault + state when people aren’t at fault in criminal law.

Answer 6

• Term used to describe the idea of blameworthiness.
  When People Aren’t At Fault In Criminal Law:
• Children under age of crim responsibility - 10
• R v Mitchell: involuntary act
• Offences committed in state of automatism / can’t form MR due to insanity / intoxication
• Lacks MR for offence
• Even though had MR, shouldn’t be blamed - self-defence , duress
  Strict Liability:
• No MR required to commit offence.

Question 7

Define individual responsibility.

Answer 7

Person isn’t responsible for crime committed by another, unless contributed to crime in some way.

Question 8

Explain fair labelling, in relation to the principles in formulating the rules of criminal law.

Answer 8

• Offence of which person is convicted of must correctly describe kind of crime committed.
• Moral stigma attached - crime should carry correct label (e.g. murder + manslaughter)

Question 9

Explain correspondence, in relation to the principles formulating the rules of criminal law.

Answer 9

• AR + MR don’t correspond - liability shouldn’t exceed harm actually encompassed by their MR.
• Murder - MR: intent to kill / commit GBH - person should only be guilty if intended to kill under correspondence principle.

Question 10

Explain maximum certainty, in relation to the principles in formulating the rules of criminal law.

Answer 10

• Law should be as certain as possible - if not known what elements constitute crime, then not fair that D should be convicted of crime.
• Misra + Srivistava: appeal as case offence elements were uncertain - appeal denied as HofL + Adomako set out clear elements.

Question 11

Explain no retrospective liability, in relation to the principles in formulating the rules of criminal law.

Answer 11

• Where particular conduct isn’t offence at time D does conduct, then clearly unfair to convict D of offence.
• Statute only applies to future conduct.
• War Crimes Act 1991: exception - created retrospective liability.