Criminal Law Lecture Notes PDF

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GFT 1 Criminal Law Lecture Notes Terminology Charged = a defendant is charged with a criminal ofence when the police decide there is enough evidence to bring that person to court. Defendant = a charged person, accused: the person against whom the allegation is being made. Appellant = Defendant on ap...

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Criminal Law Lecture Notes

Terminology Charged = a defendant is charged with a criminal offence when the police decide there is enough evidence to bring that person to court. Defendant = a charged person, accused: the person against whom the allegation is being made. Appellant = Defendant on appeal against conviction/ sentence Prosecuted = a defendant is prosecuted by the crown prosecution services in the name of the crown (they are an executive arm of the state). Criminal cases are often r v. Smith [2000]. DPP v Smith – Director of Public Prosecution (head of crown prosecution service). AG – attorney General, where the crown decides to appeal a decision. Guilty= convicted. Not guilty = acquitted. Convicted= convicted of a criminal offence at the point when they are found guilty. Sentenced = might not be immediate after conviction, the punishment imposed following conviction.

What matters should we take into account in Criminal Law? Consider the following factual scenarios in which Abel has died and IDENTIFY WHAT ISSUES you think we should regard as significant in determining potential criminal liability. a. Cain had heard a woman screaming and running to investigate had come upon Abel and the woman, Cain’s wife, in an apparent struggle. Cain had picked up a large stone and battered Abel with it. In fact, Abel had been trying to remove a deadly spider from the woman’s clothing. b. Cain had been jealous of Abel for all his life. When Abel was injured as a result of a rock fall, Cain made no effort to care for him, willing to let events shape themselves. c. Cain has had an argument with Abel and in a fit of anger decides to break the window of Abel’s car. He throws a large stone towards it but it bounces off the car and hits Abel instead who is standing next to the car.

Criminalising Conduct • • •

Is the conduct wrongful? (morally, legally, etc.) Is it necessary to invoke the criminal law? Is it permissible to invoke the criminal law under ECHR? (What can be decriminalised? How far can the state interfere with a person’s liberty to criminalise them?)

Elements of Criminal Offences Criminalisation is the most coercive method by which the State can regulate behaviour. It is the only way in which a state is allowed to deprive somebody of their liberty.

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“To criminalize a certain kind of conduct is to declare that it is a public wrong…and to censure those who nevertheless do it” (Ashworth; 2009, 22. Criminalisation is also about determining conduct from the general public’s point of view and censure behaviours that go against this. For the state to be able to impose conditions in someone’s life, the state still needs to justify why it has used state power in that way. Conduct Actus Reus Harm a) So harmful b) Requires intervention c) By the state

State of Mind Mens Rea Blame a) Defendant’s intention b) When committing the act c) That is seen as

It’s a public control of people who commit crime. Criminal court should be open to public view (public censure). It is also about giving fair warning to people about what behaviour is punishable. There are differentiations usually in form of the punishment imposed between minor and serious offences.

Identifying the ‘harmful/criminal’ What is harm? A ‘wrong’ which violates a duty. It may affect the autonomy of another or causing serious offense (that have the ability to undermine the fabric of society). Do all offences require harmful conduct? No, a crime can be committed even when there has been no harmful conduct. When a crime has not yet been committed, incomplete crime. Consider: Conspiracy (s.1 Criminal Law Act 1977) requires just ‘agreement’. Do all offences require harm to another person? - Ex. voluntary drug use - If you consent to harm (boxing), is this harm? Is this harm that requires state intervention. See consensual sexual conduct – Brown [1993] 2 All ER 75 - General ‘public' wrongs: those that properly concern/harm everyone and warrant a formal public censure. Crown Prosecution Service is representative of the fact that it is the state prosecuting the individual. Should the question of harm be based on political, moral, ethical or scientific considerations? However, the lack of consensus means that not all crimes are readily identifiable.

Identifying ‘blameworthy’ conduct: Should there be single criterion for blame? - Some crimes are intrinsically wrong (e.g. murder/rape); mala in se - Others are debatable (e.g. prostitution); mala prohibita. - Offences vary: o Should defendants only be guilty where they intended harm or at least saw significant risk of harm? Subjective blame.

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Or is it enough that reasonable people would have seen risk and defendant ought to have done the same? Objective blame.

Criminal law is moving slightly towards subjective blame but this is not the case for all offences (i.e. sexual offences). Generally, the greater the harm caused by the conduct, the more willing the court to impose objective blame. Or is it enough simply that harm is caused? Strict liability – can be difficult to identify the harm. This is often used for regulatory instances (public health and safety, insurance, etc.) Should morality of an act be key issue in making act a crime? Shaw [1962] AC 220 – Mr. Shaw decided he was going to produce a directory in relations of London Prostitutes. Convicted of conspiracy to corrupt public morals for publishing a guide to London prostitutes: residual power to conserve the moral welfare of the state (Lord Simmonds). The Lords in upholding the conviction said that the courts had a power to preserve the moral welfare of the state, acting as a custodian of public morality. They were prepared to enforce. 10 years later in a later case, the Lords resided from this saying the role of moral custodian should be left to the parliament. Even if we can identify moral code, should immorality be a necessary condition? Is it sufficient? Social morality is indefinite and much broader than criminal law. - Only conduct generally considered immoral should be penalised? You are unlikely to find a serious crime that people wouldn’t think of as being wrong. - But practical point: ethical dimension is not characteristic common to all offences - some have no moral content. Should they be crimes?

Operation Spanner How well do the courts deal with issues which relate to the boundaries of criminal law? Brown [1993] 2 All ER 75 Involved a group of consenting homosexual sado-masochists who are charged with assaulting each other. The case came to light not because any complaint was made about their behaviour. The police attended one of the defendant’s address for something unrelated and found videos of the group performing these acts on each other. These videos had never and were never going to make their way into public domain. The acts were sometimes quite extreme, however no permanent or lasting injury, requiring medical treatment, and were consenting. Their defence was that the acts should not be crimes if freely undertaken by consenting adults and not affecting others. The conviction was upheld by House of Lords. This was supported by European Court of Human Rights in Laskey v UK [1997] 24 EHRR 39 The House of Lords uphold Attorney General’s Ref to Art. 6/80 said you cannot consent to any assault causing visible harm unless there is some social utility. But who judges whether conduct has social utility? Lord Jauncey argues if a high level of risk is involved, it means activities are not in public interest (91d-j). “If it is to be decided that such activities ...are not injurious to the public interest, then it is for Parliament with its accumulated wisdom and sources of information to declare them lawful (92d-e) In the light of this, it was judged to have no social utility.

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Dissent by Slynn and Mustill – esp 115j-116b. They did not cause serious harm and judging on the facts not the what ifs. Are we looking at the actions of these individuals or the possible larger implications? Took this to the European court, who agreed that there comes a point where the level of risk makes it ok for the state to step in. Laskey v UK [1997] 24 EHRR 39 esp. paras 42 ff. The defence raised issues in respect of Art 8, namely right to respect for private life. One of the people in the group was under the age of consent at that time (which was higher than for heterosexual relationships). The courts made a big point of this as an element of the need of public protection. There was an element of discrimination in the decision making process.

Cases after Brown Wilson [1996] 3 WLR 125 Mr. Wilson at his wife’s insistence branded his wife’s buttocks with his initials. This came to light after she went to the doctor. Technically, she shouldn’t have been able to consent to that crime. However, the courts said that because it was within the privacy in the marital home, consent could be a defence. Emmett 18/6/1999 – Heterosexual sado-masochistic couple. This came to light when she went to the doctor after sustaining quite serious injury. The Court of Appeal disagreed and said “consent is immaterial where realistic risk of harm beyond merely transient or trivial injury. In such a case, it is appropriate for the criminal law to interfere.” Retreat to the thinking in Brown.

Competing Views: Hart vs. Devlin debate Lord Devlin  He was of the view that enforcement of morals is a legitimate exercise of criminal law.  A shared morality is necessary for individuals to have meaningful existence within society. Standard is of the man in the jury box.  Criminalisation is only justified when serious threat to society’s structure H.L.A. Hart Hart in Law, Liberty and Morality argues that • Social intervention is only justified to prevent harm to another. • Can only legislate against harm to self if serious public interest at stake. • Supposed ‘immorality’ is not a sufficiently good reason to criminalise behaviour.

The Harm Principle The sole end for which mankind is warranted individually or collectivel , in interfering in the liberty of action of any of their number is self-protection. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. Over himself, over his own body and mind, the individual is sovereign. (John Stuart Mill: On Liberty [1859])

The principle of harm suggests that just because moral value widely held does not justify criminalisation. Conduct should not be judged as to whether it is right or wrong in itself, but only on whether it creates an unacceptable risk of harm to others. There should only be made criminal where there is an objective harm to another; a ‘set back’ to another’s interests through a ‘wrong’ (Feinberg; 1998). This forces legislators/courts to examine precisely what the potential ill effects of acts are. For example, where there is consent, there is no harm and should be no offence. However,

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Hart accepts ‘paternalism’ as justification to protect young/vulnerable (the state has a role in protecting them).

Principles of autonomy and welfare: Ashworth (2009); Hart; Feinberg (1986) - Individual autonomy: Everyone should be treated as responsible for their own behaviour. It is reliant on free will/choice to act (which actually maybe not everyone has). It assumes ideas of culpability or blameworthy behaviour. This would militate against State censure, saying people should be able to live without state intervention.

- Welfare: They believe in upholding basic interests (health, safety, capacity to pursue a life plan). There is an emphasises the role of community. The law must operate in a social context and weigh up collective goals. Explains some protective/regulatory legislation?

Principles of ‘minimal criminalisation’ : (Ashworth; 2009) 4 main factors: 

Respect for human rights protections.  E.g. freedom of expression, right to privacy. Qualified so can be interfered with as necessary in a democratic society

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Right not to be punished by the State.  The decision to criminalise is an authorisation to issue punishment, and therefore needs to be carefully justified

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Do not criminalise where it would be counter-productive, e.g. where:  Criminalisation would cause more harm than it would prevent.  The prohibition is unlikely to be effective.

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Criminalisation should be a last resort and for the worst invasions of interest. Other forms of censure include:  Social convention and peer pressure  Civil liability  Regulatory laws (e.g. licensing)

Where are we on principles of criminalisation? These principles are complex and there are a lot of competing views. The principle does not always provide answers in today’s criminal law. - Social morality and criminal law closely intertwined BUT  Not all criminal law is about social morality  Not all social morality is enforced by criminal law - Many other considerations impinge on application of criminal law • Politics Response to contemporary social concerns: https://www.theguardian.com/commentisfree/2017/sep/10/the-guardian-view-on-dangerous-cyclingjustice-is-not-about-headlines

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Economic & social considerations Morality

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We should favour a pluralism which recognises diverse reasons for criminalisation to match the diverse type of wrong that can be legitimately regarded as criminal (Duff; 2007)

Theories of Punishment Why do we punish? We must break this over-arching question down: - Why do we have a system of punishment? - Why do we punish a particular individual (- and how severely should we punish?) Because this individual has done something to deserve punishment. The Criminal Justice Act 2003 says that currently our law defines the purposes of punishment as deterrence, protection of the public, reform and rehabilitation.

Theories of punishment: Retributivism (e.g. Kant – he believed that society exists in a state of equilibrium of free individuals. When somebody commits a crime, the equilibrium of society is disturbed, somebody has taken an unfair advantage over others and therefore, punishment is needed to restore the equilibrium.) Looking back to what has already happened, to the harm and the already committed crime. They would argue that because of the harm/ offence, society has both a moral and legal duty to punish the individual. Punishment is seen as an end in itself, not trying to achieve anything for the future by it. Therefore, the key question to be answered for a retributivist is; is the punishment deserved? In modern retributivist thinking, this question translates into the idea that punishment should be proportionate to the crime. Utilitarianism/consequentialism (e.g. Bentham, Beccaria) The perspective is forward looking. They see punishment as an evil and can only be justifies if a greater good comes from it. Their perspective would be; what do we need to do to this offender and others like them, in order to reduce offending? Punishment is only a means to an end, a means of achieving a greater good and that greater good is likely to be the reduction of crime. For a utilitarian, or a consequentialist (who would go even further), the question would be “is this punishment to this person effective?” If this were left unconstrained, punishments could be completely unproportioned.

Four main Theories: 1. Retribution This comes in four different forms; -

Vengeance: the idea that offenders should be hated.

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Denunciation: the idea that people who commit offences should have their actions condemned and that may take the form of shaming.

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Atonement: Sometimes called expiation. The idea is inevitably associated with the idea of sin. There are instances of people voluntary confessing to crimes and show some form of atonement.

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Desert: Main form. Praise, blame, and desert.

2. Deterrence (based upon the idea of fear) This comes in three different forms; -

Individual deterrence: We do something so unpleasant to the offender that even if they had the opportunity to do so they will not reoffend. Recidivism studies collects a group of punished offenders and tracks their future behaviour to see if deterrence has worked. The efficacy of this is very doubted.

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General deterrence: Exemplary sentencing, passing a particularly harsh sentence on an individual as an example to others who might do likewise.

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Educative deterrence: This is very subtle and is the idea that by having a system of criminal law and punishment, and hearing about the examples of others who have been punished, it subconsciously deters us from crime because of the fear of consequences.

3. Rehabilitation (also known as reform) This is probably the most ambitious form of punishment we will consider. It is the idea that as a result of some inner change in motivation, the offender will not choose to reoffend even if they could do so at no risk. They have an inner wish to no longer break society’s rules. There are severe doubts on the efficacy of imprisonment. Community sentencing, punishing an offender within the community so that the individual retains links with family, employment, etc. 4. Incapacitation Essentially, this is trying to remove the problem from society. - e.g. Disqualification from driving. The death penalty can be seen as the ultimate incapacitation sentence. The usual discussion revolves around imprisonment. The idea that certain categories of offenders (especially those with prior criminal records) should be removed from society for longer than their current offence merits. This again, is not proven to be very effective. Indeterminate sentence of Imprisonment (IPP), created by the Criminal Justice Act of 2003, allows judges to imprison much longer than merited where there are concerns about public safety. This IPP was repealed by the Legal Aid 2012 Act. However, it did not operate retrospectively and therefore many are still serving IPPs. A relatively new idea in law is that of restorative justice and reparation and is not a theory of punishment at all. Here we do not look at what needs to be done to the offender, the focus is particularly upon the victim of the offences and what needs to happen between the offender and victim for justice to be restored.

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Nullum crimen sine lege (No Crime Without a Law) This is a major aspect of the principle of legality. You should not be charged for something that was not criminal at the time (Article 7 of the Human Rights Act 1998). It breaks down into three different elements. 1. Retrospectivity: The prohibition of retrospectivity. If you perform an act in January 2017 and a law passes in February 2017 prohibiting that behaviour, you should not be charged with breaking the law because at the time of the performance of the act it was not illegal. R v. R [1992]; This was discussed in relation in the case of Crown v R by the House of Lords. In this decision the House of Lords ruled that whatever had been the case in the past, the marital rape exception no longer existed under English law. Historically, it had been the case that the word unlawful in unlawful sexual intercourse meant outside marriage and that by the act of marriage, a woman had given her consent to all and any acts of sexual intercourse. However, one could not retrospectively be convicted for the rape when the law had still applied. In order to ensure, that the change was part of English Law, the Criminal Justice and Public Order Act 1994 made it absolutely clear that there is no marital rape exception. 2. Fair Warning Individuals should h...