Criminal Law Notes Autumn 2018 PDF

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Criminal Law: Semester 1Terminology:  Charged: Invested by the police for a criminal case and they believe there enough evidence against you. Someone officially enters the criminal justice process. Up until they are charged, they are a suspect.  Defendant/Accused o On appeal against conviction/sen...

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Criminal Law: Semester 1 Terminology:  Charged: Invested by the police for a criminal case and they believe there enough evidence against you. Someone officially enters the criminal justice process. Up until they are charged, they are a suspect.  Defendant/Accused o On appeal against conviction/sentence = appellant o Someone posts charge, awaiting trial and sentence.  Prosecuted: The state prosecutes on behalf of victims.  By the state in the name of the crown. All of the cases are in the name of the crown or the queen all cases will start with R v…. o Thus: R v Smith (2000)  Guilty/not guilty  Convicted/sentenced Introduction: What matters should we consider in Criminal Law?  Consider the following factual scenarios in which Abel has died and identify what issues you think we should regards as significant in determining potential criminal liability. o Cain had heard a woman screaming and running to investigate had come upon Abel and the women, Cain’s wife, in an apparent struggle. Cain had picked up a large stone and battered Abel with it. In fact, Able had been trying to remove a deadly spider from the woman’s clothing. o 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. o Cain has had an argument with Abel and in a fit of anger decides to break the window 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.  If someone intends something we are more likely to treat as criminal and deal with it accordingly. Criminalising Conduct:  Is the conduct wrongful?  Is it necessary to invoke the criminal law?  Is it permissible to invoke the criminal law (under ECHR)? Why Criminalise? Objectives:  Consider the principles of criminalisation. Theories of criminalization.  Examine ideas about harm, blame and morality. Parliament and judges use it to inform their judgments particularly in the Supreme Court. They consider what principle they are trying to protect.  Consider competing views. Elements of Criminal Offences:  Criminalisation = most coercive method by which the state can regulate behaviour.

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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) Leading case on criminalization.  The state feels they need to step in. There needs to be good reason to make something a crime, has to be justifiable.  Should be a collective voice of the shared values and behaviours of how society is constituted. In the sovereign of how the state feels about behaviours, not only demanding obedience. Conduct: Actus Reus a) So harmful b) Requires intervention c) By the state – officially blameworthy and the person should be punished. State of Mind: Mens Rea a) Defendant’s intention b) When committing the act c) That is seen as meriting blame Identifying the ‘harmful/criminal’  What is harm? o A wrong which violates a duty o Affects the autonomy of another or o Causes serious offense – something that cannot be tolerated in society it needs to be punished.  Do all offences require harmful conduct? Consider: o Conspiracy (s.1 Criminal Law Act 1977) requires just ‘agreement’  Do all offences require harm to another person?  The act that is being punished is an agreement. The state steps in. o Voluntary drug use o If you consent to harm is this actually harm?  See consensual sexual/violent conduct – brown [1993] 2 All ER 75  General Public wrongs: those that properly concern/harm everyone and warrant a formal public censure  Should the question of harm be based on political, moral, ethical or scientific considerations? Something the criminal law struggles with today, whole range of sentences to deal with each of these types of harmful behaviour. Lack of consensus may be the reason why all crimes are not regularly identifiable. Identifying the ‘blameworthy’ conduct:  How do we decide someone has done something criminal and how do we justify this?  Should or does it represent a collective set of moral judgment, recent surge in civilization government of 1997 – 2010 created more criminal offences in their terms than previous years. They passed legislation nearly every day for their terms in office. Argument that maybe the government is too keen to criminalize behaviour.  Should there be single criterion for blame? o Some crimes are intrinsically wrong (e.g murder/rape); mala in se  Most people would immediately identify that is a blameworthy type of behaviour.

o Others are debatable (e.g prostitution); mala prohibita  Grey area sometimes of whether they are blameworthy. Not necessarily criminal. o Offenses vary:  Should defendants only be guilty where they intended harm or at least saw significant risk of harm? Subjective blame  Or is it enough that reasonable people would have seen risk and defendant ought to have done the same? Objective blame  Or is it enough simply that harm is caused? Strict liability – can be difficult to identify the harm… Should morality of an act be key issue in making act a crime?  There are cases that have dealt with the issue of morality head on:  Shaw [1962] AC 220 – convicted of conspiracy to corrupt public morals for publishing a guide to London prostitutes: residual power to conserve the moral welfare of state (Lord Simmonds). Unusual offence that does still exist, corruption of public moral. Court was clear that the criminal law should act as custodian of public morality and the superintended of offences against good morals. Moral obligation to criminalize in certain instances, they did later in the case of Knuller when they said that criminal law doesn’t have a great deal of power to enforce good morals.  Even if we can identify moral code, should immorality be necessary condition? Is this sufficient? Simply because it offends a moral code.  Social morality is indefinite and much broader than criminal law. o Only conduct generally considered immoral should be penalised? o But practical point; ethical dimension is not characteristic common to all offense – some have little to no moral content whatsoever. Should they be crimes? Things like minor traffic violations, having no insurance not a huge moral issue but a regulatory crime. Operation Spanner  How well do the courts deal with issues which relate to the boundaries of criminal law? We all have a private fit of life into which we have a right that other people and the state should not intrude and we are all entitled to this beyond the boundaries of state intervention and this was apparent issue in the case of Brown. o Brown [1993] 2 All ER 75: Consenting homosexual sado-masochists who are charged with assaulting each other. No permanent or lasting injury but involved the use of instruments to harm each other and had been going on for some time. None of the defendants involved reported crime to the police, they found out of about this by searching for drugs and came upon video tapes. All people involved consented and only one was a youth (under 18). Beyond this they had consented freely and known exactly what they were doing only to enhance sexual pleasure. o Defence argument – acts should not be crimes if freely undertaken by consenting adults and not affecting others or the impact of society. o Conviction upheld by House of Lords supported by European Court of Human Rights in Laskey v UK [1997] 24 EHRR 39. They appealed on the basis that it was unjustifiable experience to their private life and they lost.

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Brown – House of Lords uphold AG’s Ref 6/80 – cannot consent to any assault causing visible harm unless there is some social utility. Is it harm when its consensual? The courts have set boundaries of moral behaviour in such a way. o But who judges whether conduct has social utility? o Jauncey – high level of risk involved means activities not in public interest.  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) o Dissent by Slynn and Mustill – esp 115j -116b  Law makers may have reason to intrude into private life, they didn’t say outright that the decision is right but it was a decision for the courts to determine appropriate boundaries. Criminalization in this sphere can be justified. Looking into what appropriate intrusion is.  Laskey v UK [1997[ 24 EHRR 39 esp.paras 42 ff: case raised issues in respect of Art 8, namely right to respect for private life. Cases after Brown:  Wilson [1996] 3 WLR 125 – branding wife’s buttocks – consent could be a defence. o Needed to go to doctor and was infected doctor reported this to the police. This was an act of love in the private home and could be an act of consent.  Emmett [1999] EWCA Crim 1710 – Court of Appeal disagreed – consent is immaterial where realistic rick of harm beyond merely transient or trivial injury. In such case, it is appropriate for the criminal law to interfere. o Court of appeal disagreed with this one, said that no the law is that where there is a realistic risk of criminal law, even if it is consensual the law should step in.  These are potentially cases are all examples, of courts criminalizing behaviour based on a perceive behaviour of societies values: no one should be causing injuries. Competing Views: Hart v Devlin Debate  These cases are all illustrations of the competing views we have about criminalization. Lord Devlin:  Enforcement of Morals  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: o Social intervention is only justified to prevent harm to another o Can only legislate against harm to self if serious public interest at stake. o Supposed ‘immorality’ is not sufficiently good reason to criminalise behaviour. Need to be serious public interest at stake even then, no harm should be criminalized we should be more selective. The Harm Principle:  The sole end for which mankind is warranted individually or collectively, 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 only purpose to which power could be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.  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. o Only be made criminal where there is an objective harm to another; a ‘set back’ to another’s interests through a wrong (Feinberg; 1998) eg. Taking someones property. o All principles, forces legislators/ courts to examine precisely identify the potential ill effects of acts. In a way this is what they did in Brown, it was high risk behaviour. o For example, where there is a consent, there is no harm and should be no offence but Hart accepts ‘paternalism’ as justification to protect young/vulnerable. Type of cost/benefit analysis that is what criminal law is trying to do. The ability of the individual how they want to choose to behave. Principles of autonomy and welfare: How far we are willing to interfere in this. Ashworth (2009); Hart; Feinberg (1986)  Individual Autonomy: o Everyone should be treated as responsible for their own behaviour and capable of choosing how they would like to ask. This however could be vulnerable boundary for certain members of society. o Reliant on free will/choice to act o Assumes ideas of culpability/blameworthy behaviour o Militates against State censure  Welfare: o Upholding basic interests (health, safety, capacity to pursue a life plan). o Emphasises the role of community. o Law must operate in a social context and weigh up collective goals. o Explains some protective/regulatory legislation? Principles of ‘minimal criminalisation’ (Ashworth; 2009) Ashworth is in favour of minimal criminalization. He thinks that there are 4 main factors: Right to private life.  4 main factors: o 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. o Right not to be punished by the State  Decisions to criminalise is an authorisation to issue punishment, and therefore needs to be carefully justified. o 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. o Criminalisation should be a last resort for the worst invasions of interest, other forms of censure include:  Social convention and peer pressure

 Civil liability  Regulatory laws (e.g.licensing) Conclusions: Where are we on principles of criminalisation?  Principle does not always provide answers in today’s criminal law. Things that are debated but what is quite clear is 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 o Many other considerations impinge on application of criminal law  Politics  Response to contemporary social concerns:  Economic and social considerations  Morality o 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. Those wrongs should be recognized as public and not purely private and moral wrongs. If it only involves people involved that is a boundary breach on the state if it does affect society it should be. (Duff; 2007). o Very reactive governments who are reactive on things but not clearly. Why Punish?  Theories of punishment and how they shape the criminalization process.  Trends in state punishment, criminal justice process is shaped by politics. So political trends have shaped criminal laws since 1997 there have been a disproportionate amount of criminal laws created. Those who are convicted tend to be from marginalized and disadvantaged backgrounds disproportionately and ethnic background, criminal law may reinforce social inequality through these processes of punishment. Criminal law is being used to decide whether some peoples behaviour should be criminalized. Objectives  Examine trends state punishment o Punishment by a court (poena forensis) …can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted on him only because he has committed a crime. (Kant, Metaphysics of Morals 6:331)  Consider theories of why/types of punishment are justified by criminal law  Consider interaction with theories of criminalisation o What kind and what amount of punishment is it that criminal justice deems appropriate? Trends in Punishment  Late nineteenth century – principle of less eligibility: thought that pain of being punished should outweigh the cost of committing the crime.  1920s – treat and train: try and prevent reoffending.  1960s – discipline, surveillance, control: high profile escapes from prison, concern about being tougher.

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1970s – demise of the welfare state and rise of neoliberalism: rise of individual responsibility and focused on people need to take responsibility for their own actions. Does not take account for, that people who have been punished may not have access to certain resources.  1980s – human containment. Designed to promote universally agreed standards and underwime the inhuman aspects of punishment in wake of prison protest in 1970s  1990s – ‘prison works’: Cleanliness and safety and whether time was being used appropriately, more humanity is being restored to prisons.  1997 onwards – managerialism and correctional sentencing  Early 21st Century – rise of popular penalism and the amount of people who entered prison. Prison Population  Prison population o May 2018 = 83, 430 o September 2016 = 85, 082 o October 2015 – 86, 145  After 1993 o Courts were sending more people to prison o Sentences imposed became longer o More serious offences coming before the courts o Became more difficult to get and stay out on parole o Operational capacity of prisons doubled since early 1990s but 58% of prison establishments were still crowded in March 2018  Biggest per capita prison population in Western Europe  2010 (population circa 85,000) home secretary Ken Clarke describes system as costly and ineffective. European Convention on Human Rights  European Court of Human Rights (ECTHR) has made clear that prisoners in general continue to enjoy all freedoms under the convention aside from liberty, and they do deserve fair and proper treatment within prison. There is however a blanket ban on prisoner voting and this has been repeatedly criticized by the European Court and the leading case is: Hirst v UK(2001) – nobody ‘forfeits his convention rights merely because of his status as a person detained following conviction.” European court says this is a breach of right but it still has not been changed.  Article 3 – Relevant to conditions of detention, including overcrowding and basic hygiene facilities. o It think it fair to say that this is one area where the European convention system has made a significant difference across Europe with improvements being made to prison conditions in a number of States (Claire Ovey-Registry of the European Court of Human Rights)  Article 6 – Has restricted types of punishment/disciple which may be imposed without access to legal representation (Campbell and Fell v UK [1983]; Ezeh and Connors v UK(2002)  Article 8 – Restrictions on visits as a result of the restrains of prison life and discipline do not breach ECHR (Nowicka v Poland [2003]. Minimum statutory visits comply with right to respect for private and family life R(K) v Home Secretary [2003].

Traditional Theories of Punishments  Suggest that Criminal justice inflicts a second harm in the form of punishment on an offender, which requires justification. Why punish rather than systems of compensation?  Divided into 2 main categories and theories: o Retributive theories – looking back: concerned with influcting ‘injury’ on D in return for wrong D committed. Eye for an eye. Harming interest because you’ve harmed someone else. o Utilitarian Theories - looking forward: concerned with crime reduction through:  Deterrence: – Preventing individual and rest of society from doing something.  Incapacitation: Stopping someone from trying to commit a crime in whatever way is appropriate.  Rehabilitation: Getting to the recourse of offending behaviour and dealing with root cause, why they were motivated to commit an offence. Retribution:  Idea that punishment is a deserved response to breaking the rules (committing the offence). It’s about sending a message; this behaviour is not acceptable and inflicting the punishment if you breach societies norms based on level of harm caused. o Infliction of punishment demonstrates society’s disapproval of conduct of defendant at same time affirming the standards of society = denunciation element of criminal law. o The infliction of punishment by law gives definite expression …and justification to the hatred which is excited by the commission of the offence. (Stephen-History of Criminal Law 1883) = Vengeance element of criminal law  Does society benefit from ‘an eye for an eye’ approach.  What’s the best long-term benefit for society? Instrumentalism: Deterrence & Incapacitation  Retribution is good in terms of deterring people from committing offences and incapacitating.  Deterrence has 2 aspects: o Specific Deterrence: Punishes offe...