Criminal Law Lecture Notes PDF

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Criminal Law Lecture Notes               Substantive criminal law What is the purpose of criminal law in comparison to tort (civil law) No plaintiff in criminal case Prosecution – crown = represented by CPS – Crown Prosecution Service Victims role in criminal is merely a witness- no ow...

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Criminal Law Lecture Notes              

Substantive criminal law What is the purpose of criminal law in comparison to tort (civil law) No plaintiff in criminal case Prosecution – crown = represented by CPS – Crown Prosecution Service Victims role in criminal is merely a witness- no ownership over a case that goes to court No victim unless there is crime that has been determined by the court Prosecution has to prove different elements of the offence 3 classes of offence Summary offence – only tried in magistrates – bench of three law magistrates = no legal training that spend some time in the year trying cases in the magistrates Indictable only offences – in crown court = judge is there as umpire to ensure rules are followed Fact finder in the crown court is the jury – 12 members of the public selected at random Triable either way cases are either heard in mag or crown On what basis and according to what criteria is conduct criminalised Criminal punishment is diff to tort because they get punished instead of paying damages

Criminal Justice system 

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Ashworth – we don’t decide a crime is a crime by what it says ‘what calls for justification is a prohibition or obligation that is capable of being followed by proceedings – definition of crime is a procedural one ‘Positive duties, regulation and the criminal sanction’

R V Brown      

Sadomasochistic activities leading to physical injury Charged with section 47 of CJA Group of men that enjoy sadomasochism Were participants criminally liable for inflicting such Injury? Or was consent a defence Victims had not reported the crime but also did not suffer permanent injuries Recorded the activities

Criminalisation: 3 philosophical perspectives 1. Legal Moralism  Devlin’s “The enforcement of Morals” 1965 – society is held together by moral value – consent is not a defence  Want to give people as much freedom as possible

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Homosexuality – to legalise it will threaten society – it is seen as disgusting by Devlin People are prejudice – not understand what they are being asked about Toleration of the maximum individual fre3edom that is consistent with the integrity of society Wilson ‘Is hurting people wrong’ – even a tolerant pluralistic society must enforce the fundamental moral value that hurting people is wrong – what we think Is immoral might change over time Comes down to autonomy – people should be free to do what they want = not our business Criminal being a communicative tool Large part of society who do not see an act as criminal – it should not be a crime

2. Liberalism  J.S. Mill’s Harm principle: “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 sufficient warrant”  What is harm? = physical or emotional  Feinberg expanded this to cover “offence”  Feinberg’s definition of harm = Set back of an interest which is also a wrong  Harms that have been consented to are not harms in regard to the harm principle – it is not a wrong as you have consented to it  Shouldn’t be criminalising things that we are offended by  Feinberg response to brown – no wrong there when there is consent  Bare knowledge is not enough to criminalise – such as brown scenario as it was done behind closed doors 3. Paternalism  Hart – in favour of Mill – offence is enough to prevent people from doing things  Individuals do not necessarily know their interests best  Range of factors diminish the significance to be attached to a free choice or to consent  Feinberg - some prohibitions imposed under the paternalistic rationale can be defended on liberal grounds as needed in the public interest e.g. motor cycle helmet laws  In certain situations, judgement may be cloudy such as when alcohol is consumed which could impact the choices that someone makes  It is not as clear cut as it might seem Criminal Law as Last Resort  

Use criminal law as a last resort Behaviour needs to be immoral for it to be criminalised – Packer

When we define wrong doing – must consider whether the criminal law should be used to prevent it o Is it necessary to employ the criminal law? o Is the harm too remote? – prevent people being killed on the road o Can the law be enforced? – goes back to the private and public distinction o Alternatives to the criminal sanction? o Dangers of overcriminalisation – Stevenson and Harris – measure how many criminal offences were created by the Labour Gov – all passed through legislation o Compliance with ECHR (Laskey V UK 1997) – article 8 of HRA was not breached Brown – the Decision 

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HL (3:2) : in the absence of a reason, the victim’s consent is no defence to a charge under the Offences Against the Person Act 1861, ss20 or 47 The satisfying of sadomasochistic desires does not constitute such a good reason What might constitute a good reason’? Sports = public interest Tattooing – public interest

Lord Lowry in Brown (majority)     

Appellants claiming exemption to law in order to ‘satisfy a perverted and depraved sexual desire” Sado – masochistic homosexual activity not conducive to the welfare of society Doesn’t want to encourage the practice of homosexual sado- masochism Physical danger – probable that ‘sexual instinct’ will cause activities ‘to get out of hand’ Danger of infection (aids)

Majority judgements in Brown   

Lord Jauncey and Lord Templeman – gave similar reasons to Lord Lowry LJ – highlighted that one of the individuals involved has jot settles into a normal heterosexual relationship – seeming to regret his decisions LT highlighted that unlike these individuals who had access to sanitary equipment, others may or may not follow the same safeguarding rules

Dissenting judgements in Brown   

Lord Mustill – agrees the law could prohibit the behaviour on paternalistic grounds – but finds little evidence of risk of serious injury and need for such law These are questions of private morality Law needs to be consistent

Social Media and the criminal law      

Chambers V DPP (2013) – the twitter joke trial Offence of sending a message of a menacing character under s127 Communications Act 2003 Conviction quashed. Victory for freedom of speech Convicted at magistrates – appealed to CC – where conviction got converted Tweet is a communication under that act Unless there is an apprehension on the person receiving the message, it won’t be taken seriously

Filling the gaps   

Often existing law can cover behaviour we want to punish When is a new law needed to tackle behaviour? Up skirting – voyeurism or outraging public decency could not be charged in Gina Martin case

Theories of Punishment Four main theories    

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Retribution – backwards looking, how culpable are they and we need to punish them for it – reduce harm in future by stopping what they are doing Judge decides the sentence Judge looking back at what D has done and how, much punishment does that D deserve Vengeance – state is acting on behalf of victims – state settles matters for everyone – tooth for a tooth but not modern understanding as we don’t have death penalty for murder Expiation – D done wrong must be made to work off their wrongdoing – state gives this opportunity – offenders must be purified by suffering = old fashioned / religious understanding The dominant theory = just deserts – comes from 1970s onwards = offender deserves to be punished for wrong doing Just deserts based on Andres Vonhursh – his view that seriousness of crimes should tell us how much punishment someone should get Benefit on that – non-discriminatory - giving people what they deserve due to the actions they have committed Ideas built on Emmanuel Kant – argues just deserts – members of society have reciprocal obligations towards each other and this limits our behaviour When someone infringes their rights – they have exceeded the liberty that is given to them and therefore deserve to be punished Punishment is about storing the social equilibrium This theory has limited application – how can you decide how much punishment someone has to have = in practice it doesn’t work Kant’s idea – offender must be punished no more of no less than what they deserve

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How much punishment is deserved – will depend on the seriousness of the offence committed Need to think about how much crimes are worth Sentencing needs to consider proportionality – how do we decide what is more serious – property offence on one hand against a theft – law in this area is not proportionate Just deserts – should previous convictions be considered Previous convc = already paid the price for those convictions – only should judge them on what they have committed recently Punishment is good to prove the future a. Eliminating unfair advantage b. Censure/denunciation  Consequentialist/utilitarian theories: Deterrence – individual and general Incapacitation Rehabilitation

In addition, reparation has become an accepted concern of punishment through restorative justice initiatives – make good what they have done  Restorative justice  Bringing the offender together with the victim of the crime to show the effect of the crime on the victim – show how the victim is feeling  Helps victim as well – gives victim more of a voice Utilitarian Theories 

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Deterrence o Individual – deterring the individual from committing that offence o General – deterring others from committing that crime o Educative deterrence – subconscious level – e.g. drink driving is wrong – law changed and therefore people’s morals have changed as to what the norm is o Drink driving is now not acceptable in society – against the norm = seen as wrong behaviour o Leads to a change on a subconscious level Incapacitation – putting someone in that position where they can’t commit that crime again – prison – restraining them Disqualification from driving, curfew – not serious enough to go to prison but may be asked to stay inside for certain hours such as evening to stop them burgling houses at night Problems of predicting dangerousness – how can we predict this – who needs to be stopped Law is not clear on this aspect Rehabilitation – change the individual – cure people of their criminal tendencies Can be done through counselling, through the community – community services – doesn’t work light sentence – apprentice Is it really that effective – some work others don’t work

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Does prison work?

Combining theories  

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Combine theories – achieve a little bit of each Hart identified two issues o The general justifying aim of punishment o =utilitarian considerations o 2. Question of distribution of punishment o =determined o Try to make it work through the Criminal Justice Act 2003 – h0w much punishment should we give – how should we weight them o This is a key problem o Leads to inconsistency in sentencing o Need sentencing to be fair for protection of individuals Guidelines published oct 2015 Purposes of sentencing – CJA 2003 S.142

Sentencing Guidelines England and Wales:              

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Every offence has a maximum penalty Theft maximum penalty is 10 years Andrew Ashworth in book principles of criminal law explains this The point of fair labelling is that there should be distinctions between different kinds of offences If someone is labelled with a particular type of label it should tell us the blameworthiness of the offence Sentencing will the tell us how bad it was such as how bad the theft was When does theft become burglary or robbery We need to think about whether we should have one labelt6 cover the harm or many different labels – specifically applies to homicide We should have offences that reflect the magnitude of the law breaking Judges have to assess culpability and harm Culpability represents the mens rea and harm is the actus Reus Culpability is about the state of mind of the offender – then list of aggravating and mitigating factors Any guilty plea will result in a reduction The issue between sentencing and fair labelling – home office announcement of new offence that was passed on an assault of an emergency worker, e.g. paramedic or police – has a maximum sentence of 12 month in prison Assault has a sentence of 6 months

Criminal Law – constructing Criminal Liability Actus Reus

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Actus Reus and mens rea are the building blocks for proving any crime Actus Reus is the specific harm Mens rea is the guilty mind (+ defence) that is pleaded successfully = criminal liability Every offence has its own definition of the actus reus and mens rea required for that specific offence Actus Reus is the act that is committed by the defendant which for result crimes causes a prohibited harm Result crime – is a crime which for the purpose of the actus reus requires a particular harm to have been caused Homicide offences such as murder and manslaughter require the harm of death to have been caused Attempted murder does not require death to have been caused – inchoate crimes S 18 OAPA 1861 – unlawfully – lack of defence Maliciously – MR Wound or cause any GBH – AR With intent – MR

ACTUS REUS   

An act – consider omissions Committed in legally relevant circumstances (for result crimes) causing the prohibited result

Voluntary Act       

D’S act must be voluntary – not as simple as asking someone if they had control over their actions or not If an act is involuntary – may provide an excuse and a defence Lipman – depends on reason for involuntariness D drug addict – LSD and had the illusion of descending to the centre of the earth and being attacked by snakes D caused V’s death in trying to fight off the snakes Reason why D’s act was involuntary considered Doctrine of prior fault led to D’s conviction for manslaughter being upheld

Status offences – offences were offences that punished someone because they meet the requirements of being a a particular offence at a particular time  

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No AR Larsonneur – D deported from Ireland back to the UK where arrested for being ‘an alien to whom leave to land in the UK has been refused was found in the UK’ – had no position to be in UK - therefore offence has been committed Found to be where she shouldn’t have been – conviction upheld – not done physical act of returning – not her voluntary act – she was forced Example of why the law is unfair But trying to marry someone to get into UK anyways

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Her conviction could be justifiable if she had control over her status, but that choice was taken away from her but didn’t chose to be here therefore not her fault Winzar V CC of Kent – D removed from hospital to roadway by police, where arrested for being drunk found in a highway D’s may be liable despite having no control over their movements Robinson – Pierre – police let D’s dog out D convicted of being over of dog causing injury in public place D’s appeal against conviction was allowed CA held D must cause the state of affairs D have defence cause of the way the statute was worded

Omissions       

D is liable if they have failed to do something No general duty to act – in English Law Offence only convicted by failure to act is D under duty to act Certain situations in which duty to act arises (5 grounds identified) Question of law – judge will determine if there is a duty to act and if they fulfil the requirements of AR and MR E.g. failure to provide for a child in one’s care If a child is drowning – you do not have to help someone in trouble if you see this as you have no duty to act

Special relationship          

Downes – parent failed to call doctor on religious grounds; child died Evans – case of ms – gross negligence ms because of an omission D had sourced heroin – V become unconscious – didn’t call ambulance – died from overdose Mother owed duty, but half-sister did not Q for court was can the half-sister be liable because she didn’t call ambulance Prosecution tried to argue that there was a relationship as half-sister therefore duty was owed COA said no – the relationship is not special enough to give rise to duty PROBLEMATIC BECAUSE SPECIAL RELATIONSHIP IS NOT EASY TO DEFINE Reason for duty? – interdependence that springs from shared family life or close communal living (FLETCHER) Rationale is now accepted as duty arises because of close communal living – FLETCHER

Assumption of responsibility   

Instan – D lived with V, an elderly aunt, who relied on D for food and medical assistance – moral obligation to look after aunt and she hadn’t done that Stone and Dobinson – D’s took anorexic and infirm sister into their home Failed to feed herself – died – obvious that V needed help, but D failed to give the right help

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Neighbour had advised D to get help call social help but didn’t do that Conviction upheld as there was assumed responsibility as they had taken her into their home Sinclair – D stayed with V after V took an overdose = injected methadone Stayed with victim all night and poured water on V to try and help Didn’t call ambulance straight away Called ambulance 16 hours after = victim announced dead on arrival at hospital But failed to summon help in time Liable for ms Inconsistency – court finds duty to act in some cases and not in others – why? Ruffell – sufficient nexus to give rise to duty due to V being guest of D and D tried to revive V Overlap therefore with special relationship Question of mutual reliance? Duty will exist if there is mutual reliance between the D and V

Contractual duty – part of their job to do that thing    

Pittwood – railway gate keeper – his job to shut gate when train was coming He failed to close gate when train was passing D guilty of ms Contract is evidence of assumption of responsibility

Statutory duty            

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E.g. s1 Children and Young Persons Act 1933 Ss 2-7 Health and Safety at Work Act 1974 If there is a failure to adhere to these then it can give rise to other offences Lowe – authority to say that an omission cannot form the basis of unlawful act ms Miller – case of the arising of a dangerous situation Homeless – sleeping on mattress Ashes from cigarette fell into mattress and woke up with mattress on fire Got up and went into the other room without putting fire out Prosecuted for arson D’s case not liable because he didn’t do anything he just failed to act COA – liable to damage – they made their decision on different basis Then went to HOL Lord Diplock – under a duty to act because he created a dangerous situation and he failed to put the fire out and under duty once he became aware of the risk Duty to minimise the damage being caused

Creation of dangerous situation   

Miller (above) Santana Bermudez – D had hypodermic needle in pocket – said there was no needle in pocket Police officer put hand in pocket and pricked finger

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Evans – D supplied half- sister with drugs V died Duty arises once D realises or ought to have realised her acts have created a dangerous situation

Breach of duty?            

Once a duty is established, for D to be liable for an omission to act D must have breached that duty D must do what is reasonable Vehicle inspectorate V Nuttall – D owner of coach business – had number of responsibilities Vehicles are fitted with a tachograph He couldn’t make the drivers do what they didn’t want to do Could only make sure that they had their br...