Criminal Law Notes - Lecturer: Henrique Carvalho, Roger Leng, Laura Lammasniemi PDF

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Week 1: Crime and Criminal LawT1 WK ● Textbook to get: Jonathan Herring’s Criminal Law, Texts, Cases and Materials (8th Edition) ● Lectures on Moodle, along with handouts, reading, issues and law ● 100% exam assessed, 3 hours long with 1 problem question, 1 essay and a third choice out fo the previo...

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Week 1: Crime and Criminal Law T1 WK1 ● Textbook to get: Jonathan Herring’s Criminal Law, Texts, Cases and Materials (8th Edition) ● Lectures on Moodle, along with handouts, reading, issues and law ● 100% exam assessed, 3 hours long with 1 problem question, 1 essay and a third choice out fo the previous 2 styles ● There will be a Quiz in week 10 along with 1 1500 word formative assignment due 25/01/18 ● Critical thinking: active engagement and reflection of work. Approach work as problems that need questions asked and not taking answers for granted ● Multiple perspectives, verifying and illustrating knowledge and evaluation of points and arguments What is a Crime? ● Crime - what is a crime, why people commit crimes, what the causes of crime are, what the effects of crime are ● Criminal Law - we don't look for reason, causes or effects of crime, or the criminals themselves, we look at criminalisation, as to how and why something things are criminalised, how conducts and activities are done so and people are held liable, the structure of criminal liability. Features of Crime: ● Crime is ‘everywhere’, in that it is a common topic in society ● It is always pervasive in the news and media, and is at the heart of popular culture such as in novels, TV, movies and games. ● It is central to political and moral rhetoric and discourse, at the heart of moral debate ● All people have an opinion, and as it is ‘easy’ to describe or understand due to most people having accessibility to it, that it is arguably solvable (which is in itself a problem) Context of Crime: ● The idea of crime has been perceived by British people as an increasingly bad problem, for example in the June IPSOS MORI data it rose 5 places to 4th as the largest social for Britains ● 60% of the population believe in 2016 March that crime is increasing in the country as a whole ● Crime in the media is easily sensationalised and easy to talk about, talks about perverted and large scale crime that is easy to sell (pervasive) ● Despite crimes decreasing overall post 2000, the oval last few years have seen increases in certain styles of crimes, such as in violent crime or sexual offences (which positively has lead to more offences being reported) ● The Crime Survey of England and Wales however has still shown that we are in a period of very low amounts of crime, nowhere close to say the easily 90s (despite very small increases recently) What is Crime?: ● Black Letter Definition of Crime: crime as a legal violation, defined by the criminal law

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However this is a problematic definition, as few people can remain at this definition at its superficial level (tells little as to what it is) ○ We need to give more substance to this definition, such as saying it is a violation of public interest, as a ‘public wrong’ ○ Conclusion reached since crime is politically agreed upon as a restriction of individual rights through the imposition of a penal sanction ○ The concept of crime becomes a matter of legal definition However, seeing crime as only criminal law is problematic as: ○ It does little to help us understand why a conduct is criminalised and others aren't. Criminalisation problem ○ We can lose sight of the social context of crime.

Historical Context of Crime: ● Marital rape was not a crime till 1992 ● Homosexuality was criminalised until 1967 ● Criminal law itself did not exist as a modern legal institution until the advent of modernity in the 18th century ● Before that laws were either religiously affiliated or were considered to lie in the private sphere ● Crime therefore evolves over time Social Context of Crime: ● Eg Terrorism: ○ Whilst it is agreeably a criminal act, there are other parts to it ○ Eg Does the cause matter, eco warriors are technically terrorists by the law, but common society may not see it in that light ○ Terrorist to one person, freedom fighter to another ○ Crime depends on the status of the person within society, as an insider or outsider ○ Eg Gandhi and Mandela, for years seen as criminals and terrorists, but then became social idols and figures of empowerment Cultural Context of Crime: ● Changes according to its cultural context and our perceptions of the context of crime ● Eg Age of Criminal Responsibility in Europe is very different, 16 in Spain, 13 in France and 10 in England and Wales (radically different) Crime as a Social Construction: ● Crime does not exists in the abstract, but Is born of social interaction and process ● Muncie 2001 - ‘Crime has no objective or universal existence, but is relative to the subjective contingencies and social and historical circumstance’ ● ‘Crime is not the object but the product of criminal justice Crime and Political Power:

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Crime and criminal law as political, they serve political interest and are created through political power, which is then often obscured by the laws claim to universality and objectivity Criminal law seems to immunise those with power and influence and, in process, protects though who generate the most serious social harms, doesn’t protect members of society. Crime is unevenly distributed

Conclusions: ● Crime is a contested and malleable category that changes in time and space (i left out stuff catch up) The Scope of Criminalisation ● What is currently criminalised, characterisation of criminalisation ● What should be criminalised, principles of criminalisation ● Why should we criminalise Limit of criminalisation ● Do we criminal law ● Why should we criminalise The context of criminalisation Alternatives to criminalisation Formal, doctrinal, black letter understanding criminalisation : the conducts, consequences and circumstances which are proscribed by the criminal law and why and how they are described Broader, socio-legal and contextual perspectives: how criminalisation is put into practice, who it affects, the social, economic, cultural etc distribution, and what is not criminalised One must consider both in an evaluation off the law Scope of the Criminal Law ● The criminal law is a politically determined restriction on individual rights, through the threat or the imposition of a penal sanction ● Criminal offences (crimes): phrased as the rules of conducts, are breaches as to what are punishable by the state. These Rules: ○ May prohibit certain acts, such as theft ○ May prohibit causing certain consequences under certain circumstances, such as murder. It is not about the why or how, but the ling term result of wishing for someones death ○ May prohibit certain states of affair, such as belonging to a proscribed organisation such as a terrorist one

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May require certain action, eg taking due care to health and safety, wether that is to the self or possibly a minor that is under ones care such as a child Current estimates put there to be around 10,00 and 12,000 criminal offences in the UK. This was due to most cases being defined by the law and not state law There are many common law offences that desire not being used in decades, ave never been formally abolished. Eg 1824 Vagrancy Act law used to prosecute 2 men who went into an Iceland New criminal offences are frequently enacted, many more since the 2000s There are many statuary offences, such as public order and health, which has nothing to do with the criminal law that still influence it doe some reason

Different ‘types’ of criminal offences ● Core criminal offences that usually focus on harm done, or the harm and culpability model. ○ Eg Homicide (murder and manslaughter distinguish between different types of murder that have different intent) or sexual offences (rape, sexual assault etc) ● ‘Preventive’ criminal offences: focus on the risk of harm or ‘harmless wrongdoing’ ○ Eg Inchoate offences (attempt, conspiracy, encouraging or assisting. As long as someone as took steps to have criminal offence, even if it doesn’t go through fully, they can technically have caused a criminal act). Recently there has been an increase of pre-inchoate offences, such s terrorism offences, preaches of preventive order ● Regulatory offences: ‘quasi crimes’, focusing on the regulation of conduct ○ Eg health and safety offences, regulation of economic activities, environmental offences (eg s32 of the 1986 Salmon Act- the suspicious handling of fish). It spreads to most parts of our everyday life, such as not paying ones TV license or not having a train ticket/ Principles of Criminal Law ● What principles, values or ideas should guide the criminal law? ● With what is the criminal law primarily concerned? Is it: ○ Morality ○ Security ○ Public control ○ Justice ○ Social Order ○ Or preventing Injustice? Morality and the Criminal Law The relationship between these two is a problematic one. This is because to say that the law is concerned with ‘wrongs’ is to assume or recognise a moral dimension to criminalisation. However just like crime, ideas around morality are nuanced and contested in society. The law should be applicable to all of society, and if we have the two linked too closely, we assume that there is a public and shared morality. Morality x Moralism (imposition of a moral perspective over others.

Seen in the Hart/Devlin Debate: ● Debate that followed 1957 Wolfenden Committee Report which proposed that homosexuality should be decriminalised ● Devlin argued in his 1959 report Morals and the Criminal Law that: ○ Society is characterise day its shared morals ○ Without a shared morality , society would collapse ○ Society has a right to defend itself by criminalising immorality ● The reply by Hart in his Immorality and Treason 1959 said: ○ Weakening morals results in societal change, not collapse ○ Morality enforced by the law it of little value, social morality is best achieved through morality and debate ○ It is questionable overall whether society has shared morals ● Other examples include Sadomasochism and consent, drugs and intoxication ● Euthanasia and assisted suicide and the death penalty (capital punishment) ● Overall the most important thing is to recognise social complexity and political power, as when morality and criminal law are combined it can be a tool of oppression on greater society. ● Is it enough to say that the criminal law reflects the values or the majority of society? Is this even close to true or is it more likely the case that the criminal law reflects and affects divides in society - leads to overall oppression Liberalism ● The value of individual autonomy and liberty ● Security should serve liberty ● Liberty vs security ○ Problem 1: Liberty needs security to be protected in society ○ Problem 2: Too much security can harm liberty ○ Problem 3: we may overestimate our need for security (problem of insecurity, eg the response to 9/11, international community possibly too neurotic in response to terrorism that may lead to unjustified and oppressive laws) Harm Principle (Mill) ● First mentioned by Mill in On Liberty (1859) ● He argues that we can only act in our own self interest, and if we do in outer society it is to prevent harm to others ● However this is a limiting approach to the criminal law ● However one must question what is harm? And is every harm criminalisable ● Joel Feinberg The Moral Limits of the Criminal Law 1984 ○ Harm is to defend ones own interests. Individualism ○ An offence principle? Limits of Criminalisation ● There are many reasons not to criminalise conduct

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The criminal law is onerous The criminal law is high intrusive in society, and it itself a violation or restrain on individual liberty ○ There can be other, less intrusive, ways of reality with the same issues. Husak 2004: Criminal law should be used only as a last resort; only when necessary ○ However this seems to very rarely be true in reality ○ And there is then the question of abolitionism, and whether the criminal law is ever/always necessary

Context of Criminalisation ● Criminalisation is often a toll thorough which to pursue diverse interests particularly political interests ○ ‘penal populism’: politicians and influential stakeholders use the criminal law to show something is being done, to react to crises, and it becomes a simple form of power enforcement ● Criminalisation is significantly influenced by moments of crisis and by media exposure ○ The ‘preventive turn’ in criminal law: overcriminalisation guided by insecurity and anxiety ○ Criminalisation is easy, de criminalisation is hard ○ Questions about the complexity and fragmentation is rarely addressed and need the criminal law too be coherent and uniform

Week 2: Punishment and Criminal Justice T1 WK2 The Aims of Criminalisation ● ●

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The principles and values held to be at the core of the criminal law are part of the framework of criminalization Criminalization is often used as a tool through which to pursue diverse interests, particularly political interests ○ 'penal populism' Politicians and influential stakeholders use the criminal law to show that 'something is being done' about problems, to react to crises, etc. Criminalization is significantly influenced by moments of crisis and by media exposure ○ The 'preventive turn' in criminal law: overcriminalization guided by insecurity and anxiety Criminalization is easy; decriminalization is hard Questions about the complexity and fragmentation of criminalization are rarely addressed: the criminal law needs to appear coherent and uniform

Punishment ● Punishment is what gives criminal law its distinctive character ● The threat of punishment is implied in every criminal offence: the main character of the criminal sanction is punitive - it is supposed to serve as punishment ● Even when criminalization is thought of as mains preventive, this preventive aspect is usually thought of as achieved or achievable through the function of punishment ● WHAT ○ It must involve the infliction of unpleasantness upon its target ○ It must be inflicted for an offence ○ It must be of an offender ○ It must be imposed by an authority linked to the institutions against the rules of which the offence has been committed - usually a judicial authority ○ It must intentional, not accidental or coincidental ● PRACTICE OF PUNISHMENT ○ Each criminal offence provides the type(s) of punishment and the maximum punishment available ■ Only exceptionally will a criminal offence have a fixed penalty ○ HOWEVER, different judges may have different ideas why (justification) and how (type and amount) someone should be punished, this may lead to severe disparity in punishment for similar crimes and circumstances ○ Sentencing regulations ■ The Attorney-General can refer to the Court of Appeal a High Court sentence against an 'indictable only' offence that s/he considers 'too lenient' ■ Sentencing guidelines can be provided to specific offences ■ Since 2009, sentencing guidelines are produced by the Sentencing Council (Corners and Justice Act 2009, s.118) ■ Guidelines have been issued for most of the 'core' criminal offences ■ Those who pass sentences (judges and magistrates) should 'have regard' to the guidelines, but not need to invariably follow them ● PURPOSE ○ Consequentialist justifications - Punishment is justified by its outcomes/utility by what is achieves or produces ■ Forward-looking: seeks to primarily reduce crime ■ Deterrence (personal and general): Rational or practical discussion ■ To deter them from committing crime ■ Rehabilitation: Improvement of the offender; reform and education ■ Incapacitation: Control over the offender; removal or restraint ○ Deontological justification - Punishment is demanded by moral agency; it is what is right, and what the wrongdoer deserves ■ Backward-looking: seeks to undo the wrong done by the crime ■ Retribution: Just deserts; payback and re-balancing ■ Censure: Public condemnation

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Criminal Justice Act 2003 ■ Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing (142 purpose of sentencing) Problems with the justifications ○ Deterrence: If rational, not convincing? If practical, not efficient? ○ Rehabilitation: Can punishment really rehabilitate? Is it too lenient to be punitive? ○ Incapacitation: Too excessive? What about individual autonomy? ○ Retribution: Quantum of punishment/ Does it ignore the need for prevention? Does it open the door to punitiveness? ○ Mathiesen, Prison on Trial: none of the justifications work Problem of punishment Punishment and Justice ○ Independently of the main justification give to punishment, we often link its delivery with the pursuit of justice ○ The link is often taken for granted, so that punishment not only appears to be naturally justified, but also necessary ○ For instance, it is easy to assume that we are punishing more because there is more crime - but this is a false assumption ○ It is equally misleading to assume that the rise in punishment has caused, or is causing, a decrease in crime

The Anatomy of Criminal Liability ● Prison is used today as a kind of reservation - a quarantine zone in which purportedly dangerous individuals are segregated in the name of public safety

Week 3: Actus Reus T1 WK3 The Elements of Criminal Liability ● Every criminal offence has elements which need to be proven for liability to be established ○ Actus Reus (external elements - harm/conduct) ■ Conducts ■ Circumstances ■ Consequences ■ The actus reus may also be constituted by an omission (failure to act) ○ Mens Rea (mental elements - culpability) ■ Usually refer to a level/category of fault in relation to the actus reus ○ These are mainly analytical tools! The main thing is that criminal liability requires the whole crime to be committed

Principles of Criminal Liability ● Criminal liability is said to require a voluntary act ○ In this regard, the notion of an 'act' means mainly the idea of some voluntary action or involvement with the offence ○ An act is 'voluntary' even if it is done in the spur of the moment, as a reflex action ○ However if the act is truly involuntary, as in the case of automatism ('blackout', loss of voluntary control), then this requirement is not satisfied ○ In the case of an omission, the failure to act must be voluntary Coincidence of AR and MR ● AR and MR must coincide for liability to be established; this has two dimensions: coincidence in law and in time ● Coincidence in law ○ The AR and MR of the same crime must be established ○ It is not enough to commit a 'guilty act' while having a 'guilty mind' … the two must coincide ○ However, some elements can be shared by more than one offence ● Limits of transferred malice ● Coincident in time ○ The AR and MR of a crime must coincide in point of time ○ However, this rule has been made 'flexible' in order to deal w difficult cases ○ Fagan v Metropolitan Police Commissioner (1969) ■ Fagan’s crime was not the refusal to move the car but that having driven on to the foot of the officer and decided not to cease the act, he had established a continual act of battery. ■ This meant that actus reus and mens rea were present and as such, an assault was committed. ■ Fagan’s conviction was upheld. ■ 'Continuing act' ○ R v Thabo Meli (1954) ■ R killed a body and threw the body over a cliff ■ The body was still alive ■ 'A series of acts' The actus reus of an offence ● External elements of an offence ● Must involve a voluntary act (or omission) ● It may be constituted by ○ Conducts - specific acts or omissions ○ Consequences - specific results/outcomes of D's conduct ○ Circumstances - specific conditions that must be present

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Based on the predominant aspect of the actus reus, crimes can be classified as

Causation in Criminal Law ● If the actus reus of a criminal offence requires a specific results or consequence then a general rule Is that a causal link must be established between the defendant's voluntary conduct and the required consequence ● In other words, it must be proven that the defendant caused the results, for criminal liability to occur ○ Factual causation ■ 'but for' causation, it requires D's act to have been a nec...