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Rabea Ashraf

Introduction to Criminal Law

Introduction to Criminal Law


What is Criminal Law?

Criminal law is a criminal justice system which is based upon criminal laws
It is concerned with a set of rules, which if breached enable the courts to take
action against the wrongdoer
Clarkson, Keating and Cunningham, Clarkson and Keating Criminal Law: Text
and Materials: The function of the criminal law is to lay down a set of standards
of what is permissible or not. It is a method of social control, a framework
specifying the parameters of acceptable behaviour.

The distinction between Criminal and Civil Law

English law has 2 branches Criminal Law and Civil Law


Differences between criminal and civil law ->
Civil Law is a lot wider than Criminal Law -> Criminal law includes the
nature of crime, whereas civil law discusses everything apart from crime.
The two forms of law have different court proceedings and sanctions ->
Criminal courts set criminal sanctions and civil courts set civil sanctions. It
is only through the criminal courts that someone can go to prison. An
example of a civil court sanction may be an order to pay compensation.
Different terms are used for criminal and civil law -> In Criminal Law a
person will be found guilty/not guilty and can be prosecuted and have
a conviction, however these terms are not used in Civil Law. In Civil Law,
a person may be sued. If the claimant successfully sues, then he is
liable, the court can then make an order.
The Burden of Proof differs -> The Burden of Proof in Criminal Law has
to be beyond all reasonable doubt and has to be 99% sure. In Civil Law
the Burden of Proof is known as the balance of probabilities which states
that there must be a 51% likelihood that the activity was carried out, and it
has to be more likely than not that it was done. This is not a very close
degree of certainty.
The primary objective differs -> In Criminal Law the primary objective is
to punish the wrongdoer. In this, the state forwards the proceedings. In
Civil Law, the victim forwards the proceedings as it is a private law action.

The distinction between Criminal and Tort Law

Aims differ -> Criminal Law is about punishing the wrongdoer via a
sentence or a compensatory element to the victim. The punitive elements
of Tort law are about compensation to the victim.
Requirement of a mental element -> Criminal law requires the need of a
mental element of intention and guilty mind. E.g. if the defendant did
something wrong but did not have the intention, this is not a criminal act.
In Tort Law there is not a requirement of a mental element.

Rabea Ashraf

Introduction to Criminal Law

Why is some behaviour criminalised?


Behaviour is criminalised in the interests of public policy, so that certain acts are
forbidden to protect society from harm. Criminalising certain behaviours also acts as a
deterrent.

What conduct should be criminal?

Is it the offence itself? Seriousness of harm done?


What if no harm is done?
Regulatory offences
Retribution balancing the scales of harm

Ashworth, Principles of Criminal Law breaks down criminal offences into 4


categories
1. Violations of the person
2. Violations of the general public
3. Violations of the environment and proper conditions of life
4. Violations of property interests
Packer, The Limits of the Criminal Sanction
1. Conduct must be wrongful; and
2. It must be necessary to employ the criminal law to condemn or prevent such
conduct

What is wrongful conduct?


3 main schools of thought:
1. Legal moralism (Lord Devlin) An example of this is in R v Brown (1993),
where Lord Devlin said that homosexuality should remain a criminal act. He said
homosexuality was immoral, and its immorality means that it should remain
criminalised.
Criticism it is difficult to say what is immoral as whose moral code would be
used?
2. Harm Principle/ Individual Autonomy (Hart) This is the harm
principle/individual autonomy. Hart argued against Devlin and wanted to
decriminalise homosexuality.
3. Legal Paternalism This relates to the thinking that the state should
criminalise acts in order to protect its people for their own interests. E.g. suicide
pacts should be illegal so as to protect people from harm.
R v Brown (1993)
Lord Templeman: Although the law is often broken, the criminal law restrains a
practice which is regarded as dangerous and injurious to individuals and which if
allowed and extended is harmful to society generally
Lord Lane: two members of the group of which the appellants formed part
were responsible in part for the corruption of a youth K It is some comfort at
least to be told, as we were, that K has now it seems settled into a normal
heterosexual relationship.

Rabea Ashraf

Introduction to Criminal Law

Lord Templeman: Society is entitled and bound to protect itself against a cult of
violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is
uncivilised.
Lord Jauncey: in considering the public interest it would be wrong to look only
at the activities of the appellants alone This House must therefore consider the
possibility that these activities are practised by others and by others who are not so
controlled or responsible as the appellants claim to be.
Lord Mustill dissenting judgement: the issue before the House is not whether the
appellants conduct is morally right, but whether it is properly charged under the
1861 Act.

Sources of Criminal Law

There must be a recognised constitutional process in order to create an offence


Offences exist:
- through statutory bases through Acts of Parliament
- at common law based on courts decisions (precedent)
Existence of an offence, statutory or common law:
- enables police to exercise powers of investigation, arrest and prosecution;
- authorises courts to try and convict offenders
- defines elements of offence for the trial court

Principles of Legality
The state can only intervene where there is an offence - nulla poena sine lege
Elements of principle of legality are:
- Non-retroactivity - A person can only be tried for an offence if it is criminalised
in legislation already. This means that a person cannot be criminalised for an offence
retrospectively.
- Certainty The person needs to know what behaviour is tolerated and what
behaviour is not tolerated.
- Strict construction The law will be delivered in way that is fearest for the
defendant. Criminal law has to be applied in the narrow sense. The defendant is given
the benefit of doubt until proven otherwise.
The Burden of Proof in Criminal Law has to be beyond all reasonable
doubt and has to be 99% sure. This links with the principle of legality as it has
to be construed narrowly with the benefit of doubt for the defendant. The
prosecution has the burden of proof, apart from in cases of insanity where the
defendant has it.

Offences

Concept of offence is central:


- for police to make lawful arrest offence must exist
- for prosecution offence must exist Defendant has to be tried for a specific
offence
- police, prosecutors, defence lawyers, courts must know how an offence is
defined by law
Every offence contains certain elements
General rule: burden of proof on Prosecution
Standard of proof: beyond reasonable doubt

Rabea Ashraf

Introduction to Criminal Law

- Woolmington DPP (1935), Viscount Sankey LC: Throughout the web of the
English criminal law one golden thread is always to be seen, that is the duty of the
prosecution to prove the prisoners guilt If, at the end of and on the whole of the
case, there is a reasonable doubt the prosecution has not made out the case and
the prisoner is entitled to an acquittal. No matter what the charge or where the
trial, the principle that the prosecution must prove the guilt of the prisoner is part
of the common law of England and no attempt to whither it down can be
entertained.

Legal elements of offences


Actus Reus + Mens Rea + Absence of a Defence = liability
- traditional approach
- Actus Reus = physical element of an offence
- Mens Rea = state of mind, e.g. intention, recklessness
- non est reus, nisi mens sit rea what does this phrase mean? R v Tolson
(1889) Mr Justice Stephen: The principle involved appears to me, when fully
considered, to amount to no more than this. The full definition of every crime contains
expressly or by implication a proposition as to state of mind. Therefore, if the mental
element of any conduct alleged to be a crime is proved to have been absent in any
given case, the crime so defined is not committed; or, again, if a crime is fully
defined, nothing amounts to that crime which does not satisfy the definition.
- The Latin terms mens rea and actus reus have been criticised.
R v Miller (1983), Lord Diplock: My Lords, it would I think be conductive to clarity
of analysis of the ingredients of a crime that is created by statute, as are the great
majority or offences today, if we were to avoid bad Latin and instead to think and
speakabout the conduct of the accused and his state of mind at the time of that
conduct, instead of speaking actus reus and mens rea
Harm + Blame (Clarkson and Keating)
Conduct + Fault (Ashworth)

Actus Reus or Mens Rea? Do we care?

Terms actus reus and mens rea are useful shorthand but nothing more.
Key is:
- to know the legal elements of any offence
- to analyse the facts to see whether these elements are provable
- to know the relevant law (statute and case law)
- to apply the relevant law to the facts
Each offence has its own actus reus and mens rea
- NB not all offences require mens rea to be proven (strict liability offences)