LLB Criminal Law Course
Lecture 2: Theories of criminal law (part 2)
Principles of criminalisation
• Analysis developed by Andrew Ashworth, professor of criminal law
• Individual autonomy (cf children, those lacking capacity)
Primary concern should be individual autonomy, limits to criminal law as it interferes with autonomy
Children lack autonomy, therefore, has to be safeguarding
Therefore, criminal law doesn’t hold children liable
• Welfare: protection of individuals/society for the greater good
Regulation of people’s behaviours due to covid 19
However, principle of autonomy would say limit restrictions as it is up to people
Both principles come to conflict with each other in criminal law
• Minimalism: criminal law should be the least necessary:
- Ineffective laws undermine the law
- Intrusive
Gives power to the state that is intrusive to people
- Bears heaviest on the disadvantaged
Ability to obtain legal representation
Unfair
- Expensive
Therefore, should be least necessary
• Cf over-criminalisation
Parliament doesn’t respect minimalism, therefore, over-criminalisation, unnecessary new criminalisation
of behaviour
e.g. nuclear explosion is criminalised however, this isn’t necessary or common
and if that does occur, it could already be criminalised by falling into other statutes of explosions
• Cf Policy of social defence: legitimate to control any behaviour against good order
of state
• Principle of liability for acts not omissions
• Cf Principle of social responsibility: society needs co-operation between
individuals, so sometimes need to help others
• Principle of non-retroactivity: Act 7 ECHR
It can’t be backwards looking and can only criminalise behaviour after the conduct is criminalised
• Cf Thin ice principle: those behaving dubiously cannot complain if actions later
deemed criminal
That would justify the interpretation of criminal acts that are criminal
• Principle of maximum certainty: criminal law should have utmost clarity (fair
Lecture 2: Theories of criminal law (part 2)
Principles of criminalisation
• Analysis developed by Andrew Ashworth, professor of criminal law
• Individual autonomy (cf children, those lacking capacity)
Primary concern should be individual autonomy, limits to criminal law as it interferes with autonomy
Children lack autonomy, therefore, has to be safeguarding
Therefore, criminal law doesn’t hold children liable
• Welfare: protection of individuals/society for the greater good
Regulation of people’s behaviours due to covid 19
However, principle of autonomy would say limit restrictions as it is up to people
Both principles come to conflict with each other in criminal law
• Minimalism: criminal law should be the least necessary:
- Ineffective laws undermine the law
- Intrusive
Gives power to the state that is intrusive to people
- Bears heaviest on the disadvantaged
Ability to obtain legal representation
Unfair
- Expensive
Therefore, should be least necessary
• Cf over-criminalisation
Parliament doesn’t respect minimalism, therefore, over-criminalisation, unnecessary new criminalisation
of behaviour
e.g. nuclear explosion is criminalised however, this isn’t necessary or common
and if that does occur, it could already be criminalised by falling into other statutes of explosions
• Cf Policy of social defence: legitimate to control any behaviour against good order
of state
• Principle of liability for acts not omissions
• Cf Principle of social responsibility: society needs co-operation between
individuals, so sometimes need to help others
• Principle of non-retroactivity: Act 7 ECHR
It can’t be backwards looking and can only criminalise behaviour after the conduct is criminalised
• Cf Thin ice principle: those behaving dubiously cannot complain if actions later
deemed criminal
That would justify the interpretation of criminal acts that are criminal
• Principle of maximum certainty: criminal law should have utmost clarity (fair
