Criminal Law:
Topics:
- The role of the criminal law
o Legal moralism
o The harm principle
o Criminalising conduct: other factors
o Crime as a social construct and mechanism of power
- Actus Reus
- Mens Rea
- Inchoate Liability and complicity
- Denials of liability and complicity
- Abolitionist futures
o Introduction to abolition
o What’s wrong with reform?
o Feminist, queer, antiracist abolition
o Transformative justice
o Abolitionist mutual aid and responses to covid-19
o Black lives matter and defund the police
,Lecture 1:
The rule of law:
‘All persons and authorities within the state, whether public or private, should be bound by and entitled to
the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the
courts’, Tom Bingham, The Rule of Law (Penguin, 2010) 8
- He continues on to say that a core principle is that the law in general must be accessible and in so far
intelligible, clear and predictable
- Importance of clarity and accessibility
- One important function of criminal law is to discourage criminal behaviour, and that cannot be
discouraged if we don’t know what we should or should not be doing
Jeremy Hauser:
- States similarly when talking about an activity dimension to the rule of law as opposed to an
adjudicated dimension
- An adjudicated dimension is that the law must be clear to the people who are operating it such as
police, prosecution, judges and juries, defence lawyers
- Activity dimension to the rule of law must be so that those subject to it can be reliably guided in the
same way that Bingham described. To avoid violating it, and to be build the legal consequences of
having violated it.
- People must be able to find out what the law is and to factor into their practical deliberations
- The law must avoid taking people by surprise, ambushing them, putting them into conflict with this
requirement in such a way as to defeat their expectations and to frustrate their plans.
o You need to know what the rule is in order to be fairly treated. The criminal law should be clear
Criminal law should be clear:
Principle of legality:
Essential component of the rule of law principle (Hayek, Fuller, Raz)
Andrew Ashworth suggests that it can be split in the following way:
- Non-retroactivity
- Fair warning
- Strict interpretation of legislation
,Non-retroactivity, art 7 ECHR:
‘No punishment without law’
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the
criminal offence was committed
2. This Article shall not prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognised by civilized nation
- Welch v UK (1995) 20 EHRR 247
• Welch had been convicted of an importation of a large amount of cannabis and also
conspiracy to obtain cocaine with intent to supply
• He was found guilty and sentenced to 22 years
• Confiscation order:
Drug Trafficking Offences Act required him to pay his ill-gotten gains of £66,914 (and if he
didn’t, he would have to serve more time)
- The Confiscation order provision came into force after Welch’s arrest but before his trial, he argued
that given the rule of law non-retroactivity that this order was draconian and unfair retrospective
penalty
- The UK government argued that this was not a penalty, but rather a preventative measure designed
to prevent the defendant from benefitting from proceeds of their ill-gotten gains and to prevent
the use of proceeds for future drug trafficking. (Not a punishment)
- The EHCR held that the confiscation order must be considered as a penalty because conviction of
drug trafficking was a pre-condition, and the courts were entitled to make assumptions that the
convicted persons assets were from drug trafficking
• They said it was punitive and an additional penalty, and that article 7 had been breached
because it was a retrospective penalty
Article 7- clear definitions:
European Court of Human Rights stated in Kokkinakis v Greece (1994) 17 EHRR 397 art 7:
‘…is not confined to prohibiting the retrospective application of the criminal law to an accused’s
disadvantage. It also embodies, more generally, the principle that only the law can define a crime and
prescribe a penalty…and the principle that the criminal law must not be extensively construed to an
accused’s detriment…It follows from this that an offence must be clearly defined in law. This condition is
satisfied where the individual can know from the wording of the relevant provision, and if need be, with
assistance of the court’s interpretation of it, what acts, and omission will make him liable’ [52]
- European court considered that the offence was defined in a sufficiently precise way
‘Fair warning’ principle:
‘Respect for the citizen as a rational, autonomous individual and as a person with social and political
duties, requires fair warning of the criminal law’s provisions and no undue difficulty in ascertaining
them. The criminal law will also achieve this respect more fully if its provisions keep close to moral
distinctions that are both theoretically defensible and widely understood by lay people’, J. Horder,
Ashworth’s Principles of Criminal Law 9th edn, (Oxford, 2019) 84
• Sunday Times v UK (1979-80) 2 EHRR 245
Thalidomide scandal
• The European court found that the injunction was not proportionate to the aim of
protecting the litigants in the civil proceedings
, Sufficient certainty…
Marital rape exception ‘It seems to us that where the common law rule no longer even remotely
represents what is the true position of a wife in present day society, the duty of the court is to take steps
to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment’, R [1992] 1
AC 599, 610 (Lord Lane CJ)
‘However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an
inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points
and for adaptation to changing circumstances… Art 7 cannot be read as outlawing the gradual clarification
of the rules of criminal liability through judicial interpretation… provided that the development is
consistent with the essence of the offence and could be reasonably foreseen’, SW v UK (1995) 21 EHRR
363, [36/34]
Blasphemous libel:
- Offence abolished by s.79 Criminal Justice and Immigration Act 2008
- Lemon [1979] AC 617
- X Ltd & Y v UK (1982) 28 DR 77
- R v Chief Stipendiary Magistrate ex p Choudhury [1991] 1 QB 429
Article 7 Lemon case:
‘By stating that the mens rea in this offence did only relate to the intention to publish, the courts therefore
did not overstep the limits of what can still be regarded as an accessible clarification of the law. The
commission further considers that the law was also accessible to the applicants and that its interpretation
in this was reasonably foreseeable for them with the assistance of appropriate legal advice,’ X and Y Ltd v
UK (1982) 28 DR 77, [10]
Dishonesty:
a) What was the defendant’s actual state of knowledge or belief as to the facts and
b) Was his conduct dishonest by the standards of ordinary decent people? Barton [2020] EWCA Crim
575, [84] [the Ivey test]
Also problematic:
Joint enterprise
Some legal doctrines, such as this, have disproportionate effect on certain groups e.g., young black men
Joint enterprise:
Three types of joint enterprise
1. ‘Plain vanilla version’ (Brown v State [2003] UKPC 10) - two or more people form a joint enterprise
to commit an offence – principal offenders with a common purpose, e.g., D1 & D2 form a plan to
beat V with baseball bats
2. Secondary liability - D2 aids and abets, etc, principal offender – D1 and D2 share the same common
purpose, e.g., D2 getaway driver
3. *‘Parasitic accessorial liability’ *
▪ D1 & D2 plan to commit an offence with common purpose
▪ But D1 goes beyond the original plan and commits a separate offence
▪ E.g., a planned robbery where D1 & D2 hope not to kill, but D1 does kill
Joint enterprise murder problem: pre-Jogee
Accomplice mens rea problem
1) Foresight of what the Principal might do
2) Not foresight of the Principal’s intention
Therefore, foresight that the Principal might cause GBH with intent - was sufficient MR for joint enterprise
murder before Jogee [2016] UKSC 8 case
Topics:
- The role of the criminal law
o Legal moralism
o The harm principle
o Criminalising conduct: other factors
o Crime as a social construct and mechanism of power
- Actus Reus
- Mens Rea
- Inchoate Liability and complicity
- Denials of liability and complicity
- Abolitionist futures
o Introduction to abolition
o What’s wrong with reform?
o Feminist, queer, antiracist abolition
o Transformative justice
o Abolitionist mutual aid and responses to covid-19
o Black lives matter and defund the police
,Lecture 1:
The rule of law:
‘All persons and authorities within the state, whether public or private, should be bound by and entitled to
the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the
courts’, Tom Bingham, The Rule of Law (Penguin, 2010) 8
- He continues on to say that a core principle is that the law in general must be accessible and in so far
intelligible, clear and predictable
- Importance of clarity and accessibility
- One important function of criminal law is to discourage criminal behaviour, and that cannot be
discouraged if we don’t know what we should or should not be doing
Jeremy Hauser:
- States similarly when talking about an activity dimension to the rule of law as opposed to an
adjudicated dimension
- An adjudicated dimension is that the law must be clear to the people who are operating it such as
police, prosecution, judges and juries, defence lawyers
- Activity dimension to the rule of law must be so that those subject to it can be reliably guided in the
same way that Bingham described. To avoid violating it, and to be build the legal consequences of
having violated it.
- People must be able to find out what the law is and to factor into their practical deliberations
- The law must avoid taking people by surprise, ambushing them, putting them into conflict with this
requirement in such a way as to defeat their expectations and to frustrate their plans.
o You need to know what the rule is in order to be fairly treated. The criminal law should be clear
Criminal law should be clear:
Principle of legality:
Essential component of the rule of law principle (Hayek, Fuller, Raz)
Andrew Ashworth suggests that it can be split in the following way:
- Non-retroactivity
- Fair warning
- Strict interpretation of legislation
,Non-retroactivity, art 7 ECHR:
‘No punishment without law’
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the
criminal offence was committed
2. This Article shall not prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognised by civilized nation
- Welch v UK (1995) 20 EHRR 247
• Welch had been convicted of an importation of a large amount of cannabis and also
conspiracy to obtain cocaine with intent to supply
• He was found guilty and sentenced to 22 years
• Confiscation order:
Drug Trafficking Offences Act required him to pay his ill-gotten gains of £66,914 (and if he
didn’t, he would have to serve more time)
- The Confiscation order provision came into force after Welch’s arrest but before his trial, he argued
that given the rule of law non-retroactivity that this order was draconian and unfair retrospective
penalty
- The UK government argued that this was not a penalty, but rather a preventative measure designed
to prevent the defendant from benefitting from proceeds of their ill-gotten gains and to prevent
the use of proceeds for future drug trafficking. (Not a punishment)
- The EHCR held that the confiscation order must be considered as a penalty because conviction of
drug trafficking was a pre-condition, and the courts were entitled to make assumptions that the
convicted persons assets were from drug trafficking
• They said it was punitive and an additional penalty, and that article 7 had been breached
because it was a retrospective penalty
Article 7- clear definitions:
European Court of Human Rights stated in Kokkinakis v Greece (1994) 17 EHRR 397 art 7:
‘…is not confined to prohibiting the retrospective application of the criminal law to an accused’s
disadvantage. It also embodies, more generally, the principle that only the law can define a crime and
prescribe a penalty…and the principle that the criminal law must not be extensively construed to an
accused’s detriment…It follows from this that an offence must be clearly defined in law. This condition is
satisfied where the individual can know from the wording of the relevant provision, and if need be, with
assistance of the court’s interpretation of it, what acts, and omission will make him liable’ [52]
- European court considered that the offence was defined in a sufficiently precise way
‘Fair warning’ principle:
‘Respect for the citizen as a rational, autonomous individual and as a person with social and political
duties, requires fair warning of the criminal law’s provisions and no undue difficulty in ascertaining
them. The criminal law will also achieve this respect more fully if its provisions keep close to moral
distinctions that are both theoretically defensible and widely understood by lay people’, J. Horder,
Ashworth’s Principles of Criminal Law 9th edn, (Oxford, 2019) 84
• Sunday Times v UK (1979-80) 2 EHRR 245
Thalidomide scandal
• The European court found that the injunction was not proportionate to the aim of
protecting the litigants in the civil proceedings
, Sufficient certainty…
Marital rape exception ‘It seems to us that where the common law rule no longer even remotely
represents what is the true position of a wife in present day society, the duty of the court is to take steps
to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment’, R [1992] 1
AC 599, 610 (Lord Lane CJ)
‘However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an
inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points
and for adaptation to changing circumstances… Art 7 cannot be read as outlawing the gradual clarification
of the rules of criminal liability through judicial interpretation… provided that the development is
consistent with the essence of the offence and could be reasonably foreseen’, SW v UK (1995) 21 EHRR
363, [36/34]
Blasphemous libel:
- Offence abolished by s.79 Criminal Justice and Immigration Act 2008
- Lemon [1979] AC 617
- X Ltd & Y v UK (1982) 28 DR 77
- R v Chief Stipendiary Magistrate ex p Choudhury [1991] 1 QB 429
Article 7 Lemon case:
‘By stating that the mens rea in this offence did only relate to the intention to publish, the courts therefore
did not overstep the limits of what can still be regarded as an accessible clarification of the law. The
commission further considers that the law was also accessible to the applicants and that its interpretation
in this was reasonably foreseeable for them with the assistance of appropriate legal advice,’ X and Y Ltd v
UK (1982) 28 DR 77, [10]
Dishonesty:
a) What was the defendant’s actual state of knowledge or belief as to the facts and
b) Was his conduct dishonest by the standards of ordinary decent people? Barton [2020] EWCA Crim
575, [84] [the Ivey test]
Also problematic:
Joint enterprise
Some legal doctrines, such as this, have disproportionate effect on certain groups e.g., young black men
Joint enterprise:
Three types of joint enterprise
1. ‘Plain vanilla version’ (Brown v State [2003] UKPC 10) - two or more people form a joint enterprise
to commit an offence – principal offenders with a common purpose, e.g., D1 & D2 form a plan to
beat V with baseball bats
2. Secondary liability - D2 aids and abets, etc, principal offender – D1 and D2 share the same common
purpose, e.g., D2 getaway driver
3. *‘Parasitic accessorial liability’ *
▪ D1 & D2 plan to commit an offence with common purpose
▪ But D1 goes beyond the original plan and commits a separate offence
▪ E.g., a planned robbery where D1 & D2 hope not to kill, but D1 does kill
Joint enterprise murder problem: pre-Jogee
Accomplice mens rea problem
1) Foresight of what the Principal might do
2) Not foresight of the Principal’s intention
Therefore, foresight that the Principal might cause GBH with intent - was sufficient MR for joint enterprise
murder before Jogee [2016] UKSC 8 case
