Criminal Law Notes term 1 PDF

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Week 1 – Introduction to Criminal Law Module will focus on substantive criminal law : The set of laws governing how members of a society are to behave  Criminology, law of evidence, law of sentencing, criminal process, criminal justiceCriminalisation  Formal, doctrinal, black-letter understanding...

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Week 1 – Introduction to Criminal Law  Module will focus on substantive criminal law: The set of laws governing how members of a society are to behave  Criminology, law of evidence, law of sentencing, criminal process, criminal justice Criminalisation  Formal, doctrinal, black-letter understanding: conducts, consequences, and incriminating/exculpatory circumstances proscribed by criminal law, and the reasons and methods of their proscription  Broader, contextual, critical perspectives: How criminalisation is actuated; who it affects; how it is distributed; underlying social, political, economic dynamics  the module will offer a blend of the two Criminal law: Politically determined restrictions on individual rights through the threat and/or imposition of penal sanction Criminal offence: phrased as rules of conduct, breaches of which are punishable by the state. These rules are:  May prohibit certain acts, e.g. theft  May prohibit causing certain consequences under certain conditions, e.g. murder  May prohibit certain states of affair, e.g. belonging to a terrorist organization  May require certain forms of conduct, e.g. taking due care for health and safety Sources of Criminal law  Statutes: Great majority of criminal laws are statutory. However, even these are open to interpretation  Common law//case law: Most criminal law is statutory, but some offences remain under the purview of case law, e.g. murder, manslaughter, conspiracy to defraud The Structure of the Criminal Law  Very loose structure – scattered across various statutes and cases  The “dream” of codification – Has been more or less abandoned  Law Commission: independent advisory body that compiles reports tabling suggestions to the government  An ideal (of) structure  General Part: general elements and principles  Special Part: specific criminal offences

Elements of Criminal Liability (1) Actus Reus (“guilty act”)/external elements – harm/conduct: conduct, consequences, circumstances – may also be constituted by omission (failure to act) – Criminal act resulting from voluntary bodily movement. Varies whether the actus reus for a crime embodies a result or a conduct itself. Certain aggravating circumstances can increase the gravity of the actus reus

(2) Mens Rea (“guilty mind”)/mental elements – culpability: Relates to the level of category of the fault, usually (but not always) in relation to an element of the actus reus – Mental element of a person’s intention to commit a crime; knowledge that one’s actions or lack thereof will cause a crime to be committed (3) Absence of a valid defence: Each defence has its own specific, often unique elements

Sample Offence: Criminal Damage Criminal Damage Act 1971 1 Destroying or damaging property. (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another— (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence. (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.  Actus Reus  Mens Rea ______________________________________________________________________________

Seminar 1 (In-person)  Better to err on the side of caution when taking notes  Use Moodle forum for any questions related to the reading d. Derrick receives a message from Jojo, a known gangster, which says that Derrick must break Jojo’s rival Mandy’s car, or else Jojo will seriously hurt Derrick’s father. Fearing for his father’s wellbeing, Derrick uses a hammer to damage the engine of Mandy’s car, breaking it. Derrick has committed criminal damage.  Consider the duress that Derrick is under – it might lessen or even negate Derrick’s liability ______________________________________________________________________________

CRIMINALISATION AND THE STRUCTURE OF CRIMINAL LIABILITY Week 2, Autumn Term (Term 1) Week 2 Lecture Notes  over 10,000 criminal offences Types of Criminal Offences  Core Criminal Offences Focus on ‘harm done.’ Traditional harm and culpability model. E.g. homicide, assault, battery, sexual offences, property offences  Preventive Offences Focus on risk of harm; ‘harmless wrongdoing.’ E.g. some conduct and possession offences (dangerous driving, possessing a dangerous substance); Inchoate offences (incitement, conspiracy, encouraging or assisting a crime); pre-inchoate offences (offences such as most terrorism offences, breaches of preventive orders, etc…)  Regulatory Offences Focus on the regulation of a conduct. E.g. Health and safety regulations, regulation of economic activities, environmental offences Morality and Criminal law – Problematic Relationship  The term “wrongs’ invariably assumes that criminal law has a moral dimension  BUT just like crime, notions of morality are highly contested  Can we identify the basis for a public morality?  Morality vs Moralism (imposition of moral outlooks over others)  1957 Wolfenden Committee Report: Made a case for the decriminalization of homosexuality. Argued that the criminal law had no right to intervene in private matters  Patrick Devlin, Morals and the Criminal Law (1959): Argued to the contrary, propounding that the law had a duty to uphold public morality, as society would collapse in the absence of shared morals  Herbert L. Hart, Immorality and Treason (1959): Countered that society does not have any single moral code, but multiple (especially in diverse societies). Additionally, weakening morals do not necessarily signal societal collapse, but merely change. Morality can be inculcated through education rather than criminalisation.  Need to recognize social complexity and political power R v Brown (1994) Facts: Group of homosexual men engaged in consensual sadomasochistic activities Judgement:  “Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is a cruel thing. Cruelty is uncivilized.” The Harm Principle: holds that the actions of individuals should only be limited to prevent harm to other individuals.  Considered the core of criminal law Liberty VS Security (Ideally, security serves to enhance liberty)

 Problem 1: Liberty seems to need security (Hobbs’s Leviathan)  Problem 2: Too much security stymies liberty  Problem 3: We may overestimate our need for security Problems of criminalisation  Criminalization is often used as a tool to purse various interests to the detriment of justice  ‘Penal Populism’: Politicians use criminal law to show that ‘something is being done’ to react to problems crises (Agamben: paradigm of security)  Criminalization is disproportionately influenced by crises  ‘preventive turn’ of criminal law often reaches over into deleterious overcriminalisation  Criminalization is easy, decriminalization is hard  Criminal law needs to appear coherent Key points  difficult to find a single guiding principle for criminalization  Criminalization is best understood through analysis of its context  BUT at the same time, the principles and values held at the core of criminal law are also part of its context; important to understand how politicians and criminal lawyers try to understand justify criminalization

Lecture 3 Notes THEFT (S1(1) THEFT ACT 1968) (1)A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. • Actus reus: to appropriate property belonging to another • Mens rea: to so dishonestly and with the intention of permanently depriving the other of it Common law sample defence: Palmer v R (1971) "It is both good law and good sense that a man [sic] who is attacked may defend himself [sic]. It is both good law and good sense that he [sic] may do, but only do, what is reasonably necessary.” Elements of the defence: • D must have acted with an honest belief in the need for preventative force • The force used by D was reasonably proportionate in the circumstances as D believed them to be General Requirements of Criminal Liability (1) Voluntary Act Requirement  ‘act’ mains some voluntary action or involvement in an offence  Omission – the failure to act – must be voluntary as well  An act is voluntary even if it is done on the spur of the moment, as a reflex action  However, if the act is truly involuntary the requirement is not satisfied, see the defence of automatism (i.e. a blackout, loss of voluntary control) (2) Coincidence of the actus reus and the mens rea in law  The actus reus and the mens rea of the same crime must be committed; it is not enough to have a guilty mind about one thing while committing a guilty act of another offence (e.g. A fantasizing about killing B and then accidently stepping on his laptop)  BUT offences can share elements  Transferred Fault or Malice: In some cases, the ‘malice’ or fault in one crime can be transferred to another one. E.g. If A shoots to kill B but misses and hits C instead, killing her, A will be guilty of murder – Even if A never intended to kill C. BUT if Derrick shoots to kill Carl but misses and hits and injures Bethany instead, Derrick can be held liable for intentionally inflicting grievous bodily harm to Bethany but for attempting to murder her (see R v Grant). Attorney-General’s Reference (No 3 of 1994) [1997] UKHL 31 • D stabbed his girlfriend E, whom he knew to be pregnant • E recovered, but there was evidence that the child, V, was born prematurely as a result of the wound and, as a result of the premature birth, died after 121 days • D was charged with the murder of V • Problem 1: at the time of the crime, V was not born yet • Problem 2: a foetus, although not simply a part of the mother, is not a person in law • Decision: no transferred malice (however, D was still convicted of manslaughter) (3) Coincidence of the actus reus and mens rea in time

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It is not enough to commit the mens rea of an offence at one time, while committing the actus reus at another  BUT this principle has been made ‘flexible’ to address difficult cases: R v Thabo Meli (1954) Facts: The defendant clubbed the victim over the head. Thinking the victim had died, the defendant cast the victim off a cliff. However, the victim survived the fall as well, dying exposure later. The defendant argued that he cannot be held liable for murder. Judgement: Defendant convicted for murder – ‘series of acts’ Fagan vs Metropolitan Police Commissioner (1969) Facts: Fagan told to pull over by police officer. Fagan accidentally parked with one wheel on the officer’s foot. Office told Fagan to move. Fagan refused. Fagan argued he was not guilty as he had only parked on the officer’s foot by accident. Judgement: ‘Continual Act’ – Court agreed that assault cannot be committed by omission. However, in this case, the crime was not an omission to move the car; rather, it constituted a continual act of battery. The offence was not complete until the moment Fagan realised that he had driven onto the foot of the officer and, in deciding not to cease this continuous act, formed an intent amounting to the mens rea for common assault.

Key Issues  How can an understanding of the moral, social, political, ideological and historical dimensions of crime assist our study of the criminal law?

 Can a ‘thicker’, more nuanced conceptualisation of crime assist our understanding of the workings of the criminal law?  What are the aims of criminalisation? What do we aim to achieve through the criminal law, and how well does the criminal law perform its functions?  Are there principles that guide criminalisation, or is it mainly a question of policy and politics?  Is there too much criminal law? Are there areas where other types of approach or response would be more appropriate? 

What is the structure of criminal liability, and how should it be analysed?

 What is the actus reus of an offence? Does criminal liability always require a voluntary act?  What is the mens rea of an offence? Does criminal liability always require an element of fault?  What is the principle of coincidence? What does it mean to say that actus reus and mens rea must coincide?

PUNISHMENT AND CRIMINAL JUSTICE Week 2, Autumn Term (Term 1) Essential Reading: T. Newburn, Criminology (3rd edition, Routledge, 2017), Chapter 23 (Punishment and penology), pp. 753-769 NOTES Zedner’s 6 Questions about crime: 1. What are the prerequisites of formal punishment? Two basic principles govern punishment: (a) There can be no crime without law (b) There can be no punishment without law 2. What are its components? Two components: (a) Censure (disapproval) (b) Sanction (‘pain’) 3. Who imposes punishment?  Sometimes there is a distinction drawn between the allocation of punishment on the one hand and the delivery of punishment on the other (allocation usually remains in the hands of the state, whereas, say, in the case of private prisons, the delivery may be via private corporations). 4. Upon whom, and when, is punishment to be imposed?  Must the imposition of punishment follow conviction? If so, what of informal punishment or the infliction of pain for civil wrongs – are they punishments? In this regard the move toward the increasing use of ‘on-the-spot penalties’ and civil penalties such as Anti-Social Behavioural Orders (ASBOs) is an interesting development 5. What social roles does punishment fulfil?  As we will see, these may vary and may include bolstering what Durkheim referred to as the collective conscience, through to maintaining the position of the powerful. 6. And with what justification or to what end is it inflicted?  Numerous answers including: (a) Discourage people from offending (b) Make amends for what has been done (c) Protect us from those who are dangerous (d) Reinforce social values and bonds (e) Simply because they deserve to be punished

Retributivism: Retributive justice is a theory of punishment that when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence. Consequentialism: Consequentialism is a class of normative, teleological ethical theories that holds that the consequences of one's conduct are the ultimate basis for any judgment about the rightness or wrongness of that conduct. Thus, from a consequentialist standpoint, a morally right act is one that will produce a good outcome. Consequentialism draws heavily on utilitarianist approaches. Penology: The study of penalties 3 Ways of reducing crime through criminal law (1) Deterrence:  Individual vs General deterrence; deterring those who have already offended vs those who have not  Certainty Vs Severity of Punishment: For most of history, the defining principle was severity (punishments were more severe), but certainty has come to mostly dominate today ( (2) Rehabilitation: (3) Incapacitation: Problem with General Deterrence • How does one decide how severe punishments have to be in order to make people decide not to commit offences? • Is the same level of severity appropriate for everyone (are we deterred by different things)? • Are all offences rationally assessed? What about those offences where there is a significant degree of emotion? • Is it the case that all those people one might wish to deter will actually know about punishments that have been imposed? Individual Deterrence (e.g. juvenile detention centres, three strikes) • It allows for the innocent to be punished (the principle is simply that some punishment must be meted out in order to remind others of its existence). • It allows for punishments to be imposed that are in excess (often well in excess) of the harms done by the offence (in one infamous case in California a twice-convicted felon received a 'third strike' life sentence of 25 years to life for the theft of a slice of pizza from a group of children. The sentence was reduced to six years on appeal). • It allows for the punishment of crimes that have not yet been committed.  Scant statistical evidence of success Rehabilitation  Rehabilitation is based on a number of assumptions that can each be challenged: (1) Delinquency has discoverable causes, (2) These causes are open to treatment, (3) If not treated, they will get worse, (4) Treatment, even if coerced, is not punitive, as it is for the offender’s good, (5) Overlooks the fact that much offending is opportunistic (6) Additionally, rehabilitative approaches have received criticism for overly deterministic

approaches, ignoring individual agency in favour of social, cultural, and biological conditions  In general, rehabilitative approaches suffer from overgeneralization, but hold great potential when tailored to individual needs and circumstances. Incapacitation (e.g. prison, death penalty, (surgical) castration,  Problem with identifying those whose habit/repeat offenses merit incapacitation – definition will inadvertently be arbitrary  Produces considerable collateral damage  Difficult to justify imposing harsh terms on criminals unlikely to reoffend Retributivism – lex talionis: “an eye for an eye, a tooth for a tooth”  Does not provide answers to novel or complex offences like blackmail or fraud  Fails to heed the notion that punishment should only be meted out to those truly responsible, i.e. cannot adequately address mens rea (e.g. accidental versus deliberate murder)  Desert Theory  Decline of belief in rehabilitative approach  Indeterminate sentencing criticised (rehabilitative approaches viewed indeterminate sentencing – leaving the sentence up to the judge’s discretion – as they allowed the sentence to be ‘moulded’ to fit the ‘treatment’ imposed) for lacking any direct relationship between the offence and the scale of punishment, and for allowing for considerable variation in sentences for the same offences  Lack of clarity  Apparent ineffectiveness  new right commentators called for a tougher approach to crime Just Deserts (new retributivism)  Assertion that punishment should be linked to the nature of the crime committed  Ordinal proportionality: Hierarchic ranking of offences  Cardinal proportionality: Scaling punishments by referral to a “cardinal” punishment, which represents the most severe sentence 3 Step Argument for Proportionality 1. The state’s sanctions against proscribed conduct should take a punitive form, that is, visit deprivations in a manner that expresses censure or blame. 2. The severity of a sanction expresses the stringency of the blame. 3. Hence, punitive sanctions should be arrayed according to the degree of blameworthiness (i.e. seriousness) of the conduct.  Desert theory assumes offenders’ free-will  Censure connected to crime without consideration for future conduct  Prudential Disincentive: Additional punishment that persuades us to resist the temptation to commit crime, OR punishment a form of moral communication  Desert Theory aims to make punishment certain, consistent and fair Problems  Some offences difficult to rank ~ ordinal proportionality  Cardinal proportionality influenced by politics

• Is it always appropriate for proportionality to be the primary aim of sentencing? Are there not cases - exceptional perhaps - where matters of public protection outweigh individual rights? • Is it really possible to order offences, and those matters which might act as aggravating or mitigating factors, in a way that is clear and just? What is to prevent the creation of ever more finely graded punishments and creating a system that is overly complex and possibly incoherent? • A danger with retributivism is that it is easily subverted by repressive and punitive political intentions. • More generally,...