Theory of Criminal Law

Question 1

What is AR and MR?

Answer 1

AR = Guilty Act
MR = Guilty Mind

Question 2

What is the standard of proof in criminal law?

Answer 2

• Beyond all reasonable doubt

Question 3

What is the burden of proof in criminal law?

Answer 3

• Innocent until proven guilty

Question 4

What is harm as the basis of criminal conduct?

Answer 4

• Everyone in the community has a right to be free from harm
• Seen in non/fatal offences where people should be protected from harm
• Must also be protected from property harm

Question 5

What is paternalistic law?

Answer 5

• Conduct should be criminalised in order to protect us from doing harm to ourselfs
• This can be seen in supplying drugs/cigarretes
• However the courts must consider when illegal conduct is done through consenting.
• Seen in R v Brown and R v Wilson

Question 6

What is legal moralism?

Answer 6

• Conduct is wrong if it is morally wrong
• Laws may be used based on society’s collective judgement or whether the behaviour is immoral
• Seen in R v Hinks, R v Brown and Shaw v DPP

Question 7

What is autonomy of the individual?

Answer 7

• An individual should have freedom to do whatever they want
• This should only ever be limited to prevent harm
• Adults should be responsible for their own behaviour
• Laws should protect people from harm
• Seen in R v Brown

Question 8

What is fault in criminal law?

Answer 8

• Law considers the individual responsible for their own behaviour and the consequence of it
• The law considers circumstances where a person is not at fault/responsible

Question 9

What are circumstances where there is not fault?

Answer 9

• Strict liability offences do not match the principle of fault
• Children under criminal responsibility
• Involuntary act
• Cannot form MR due to insanity
• Lacks MR
• Self-defence

Question 10

What is fair labelling?

Answer 10

• The offence for which the person is convicted must correctly describe the kind of crime that has been committed
• The offence must be fairly labelled
• This is due to social stigma, correctly labelling the crime and differentiate between offences
• Certain offences hold different labels such as murder and insanity
• This label can have a positive and negative effect

Question 11

What is the correspondence principle?

Answer 11

• The actus reus and mens rea of the offence must be the same
• This means that the intented AR must match the offence
• This is seen in theft
• This may not always happen, the liability of the accusesed should not exceed the harm caused by the MR
• Certain offences that do not correspond is murder, unlawful act manslaughter and offence against the person offences

Question 12

What is maximum certainty?

Answer 12

• Defined by Tony Honore
• The principle requires that criminal law is clear and precise so individuals are aware of the laws and can act accordingly
• This can lead to ambiguity or uncertainty
• If the law is vague, a person cannot be convicted
• R v Misra and Srivstava

Question 13

What is no retrospective liability?

Answer 13

• When the conduct is not an offence at the time a defendant has done it, it is unfair to convict them of an offence
• Set out in Article 7
• No one shall be guilty of an criminal offence which did not constitute an offence at the time it was committed
• ## No one is penalises for behaviour that was lawful when it took place

Question 14

What is legal liberalism?

Answer 14

• Legal Moralism is the opposite to legal liberalism which is the idea that laws may only be used if they promote liberty
• Liberty is the idea of being free from oppressive systems imposed by authority