Criminal Law
Why Criminalise?
Why Punish?
The Autonomy of a Crime
Actus Reus
Mens Rea
Interaction of Actus Reus and Mens Rea
Homicide
Capacity
Non-fatal Offences against the person
Sexual offences
Property offences
Inchoate offences
Complicity
Denial of offences
Defences
A crime may be defined as an act (or omission by state of affairs) which
contravenes the law and which may be followed by prosecution in criminal
proceedings with the attendant consequence, following conviction, of
punishment.
Why Criminalise?
What is the relationship between morality and the criminal law?
What is the relationship between "harm" and the criminal law?
What other factors ought to be considered when determining whether the criminal law
ought to be invoked?
What other factors may distort this process?
Brown [1994]
- Sado-masochistic encounters between consenting adults
- A theme of disapproval of the activites...
- Lord Templeman: "Society is entitled and bound to protect itself against a cult of
violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is
uncivilised. I would answer the certified question in the negative and dismiss the appeals
of the appellants against conviction."
- Lord Mustil in his dissenting judgement discussed that this was not an issue for morals or
ethics
Wilson [1996]
,Criteria for criminalisation:
1) The conduct must be wrongful
2) It must be necessary to employ the criminal law to condemn or prevent such conduct
3) It must be permissible to criminalise the activity
Why Punish?
There are commonly said to be four theories of punishment:
Retribution (Vengeance, denunciation, expiation and desert)
Deterrence (Individual, general, educative)
Incapacitation
Reform or rehabilitation
The principle of individual autonomy – every individual should be treated as responsible for
their behaviour
- Factual autonomy = we all have the capacity and free will to make meaningful choices
- Normative element = individuals should be respected and should be treated as agents
capable of choosing their acts and omissions and that without recognizing individuals as
capable of independent agency they could hardly be regarded as moral persons.
Although the main question is framed as "Why do we punish?” it has been argued that there are
several sub-questions involved which require separate consideration:
- H.L.A. Hart, "Prolegomenon to the Principles of Punishment" in Punishment and
Responsibility - Essays in the Philosophy of Law (1968)
1. What is the justification or purpose of the entire institution of punishment?
2. What is the justification for punishment in a particular case?
3. To whom may the punishment be applied?
4. How severely may we punish?
Identifying the ‘harmful/criminal’
What is the ‘harm’?
- A Wrong which violates a duty
- Affects the autonomy of another
- Causes serious offence
Identifying ‘blameworthy’ conduct
- Some crimes are intrinsically wrong (murder/rape) mala in se
- Others are debateable – mala prohibita
- Objective and subjective blame
Should morality of an act be a key issue in making an act a crime?
, The criminal law is a reflection of corporate or social morality. The wrongdoing which the
criminal law seeks to punish is that which threatens the fundamental values upon which a
society is founded.
Social morality is indefinite and much broader than criminal law.
- Shaw [1962] (convicted of conspiracy to corrupt public morals for publishing a guide
to London prostitutes)
‘residual power to conserve the moral welfare of the state’ - Lord
Simmonds).
Patrick Devlin: ‘i think it is clear that the criminal law as we know it is based upon moral
principle’
Lord Devlin has explained: ‘a public morality is one of the vital ingredients of a society and
that the State has the right to safeguard anything that is essential to its existence’
How well do the courts deal with issues which relate to the boundaries of criminal law? Operation
spanner
Brown [1993] (consenting homosexual sado-masochists who are charged with assaulting
each other).
- defence – acts should not be crimes if freely undertaken by consenting adults and
not affecting others
- conviction upheld by House of Lords supported by European Court of Human Rights
in Laskey v UK [1997]
- 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
Wilson [1996] branding wife’s buttocks - consent could be a defence
Emmett 1999 – Court of Appeal disagreed - consent is immaterial where realistic risk of
harm beyond merely transient or trivial injury. In such a case, it is appropriate for the
criminal law to interfere.
Competing views on enforcement of morals-
Hart v Devlin debate:
Lord Devlin:
Enforcement of Morals
A shared morality is necessary for individuals to have meaningful existence within society.
Standard is of the ma 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
Social intervention is only justified to prevent harm to another
Can only legislate against harm to self if serious public interest at stake
Supposed ‘immorality’ is not sufficiently good reason to criminalise behaviour
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 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.
- only be made criminal where there is an objective harm to another; a ‘set back’ to
another’s interests through a ‘wrong’ (Feinberg; 1998)
- forces legislators/courts to examine precisely what the potential ill effects of acts are
- for example, where there is consent, there is no harm and should be no offence but
Hart accepts ‘paternalism’ as justification to protect young/vulnerable.
Principles of ‘minimum criminalisation’ (Ashworth 2009)
4 main factors:
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
Right not to be punished by the State
- Decision to criminalise is an authorisation to issue punishment, and therefore needs to
be carefully justified
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
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)
Principle does not always provide answers in today’s criminal law
- Social morality and criminal law closely intertwined BUT
o Not all criminal law is about social morality
o Not all social morality is enforced by criminal law
- Many other considerations impinge on application of criminal law
o Politics
o Economic & social considerations
o Morality
Why punish?
Criminal justice inflicts a second harm in the form of punishment on an offender, which requires
justification
Divided into 2 main categories:
Why Criminalise?
Why Punish?
The Autonomy of a Crime
Actus Reus
Mens Rea
Interaction of Actus Reus and Mens Rea
Homicide
Capacity
Non-fatal Offences against the person
Sexual offences
Property offences
Inchoate offences
Complicity
Denial of offences
Defences
A crime may be defined as an act (or omission by state of affairs) which
contravenes the law and which may be followed by prosecution in criminal
proceedings with the attendant consequence, following conviction, of
punishment.
Why Criminalise?
What is the relationship between morality and the criminal law?
What is the relationship between "harm" and the criminal law?
What other factors ought to be considered when determining whether the criminal law
ought to be invoked?
What other factors may distort this process?
Brown [1994]
- Sado-masochistic encounters between consenting adults
- A theme of disapproval of the activites...
- Lord Templeman: "Society is entitled and bound to protect itself against a cult of
violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is
uncivilised. I would answer the certified question in the negative and dismiss the appeals
of the appellants against conviction."
- Lord Mustil in his dissenting judgement discussed that this was not an issue for morals or
ethics
Wilson [1996]
,Criteria for criminalisation:
1) The conduct must be wrongful
2) It must be necessary to employ the criminal law to condemn or prevent such conduct
3) It must be permissible to criminalise the activity
Why Punish?
There are commonly said to be four theories of punishment:
Retribution (Vengeance, denunciation, expiation and desert)
Deterrence (Individual, general, educative)
Incapacitation
Reform or rehabilitation
The principle of individual autonomy – every individual should be treated as responsible for
their behaviour
- Factual autonomy = we all have the capacity and free will to make meaningful choices
- Normative element = individuals should be respected and should be treated as agents
capable of choosing their acts and omissions and that without recognizing individuals as
capable of independent agency they could hardly be regarded as moral persons.
Although the main question is framed as "Why do we punish?” it has been argued that there are
several sub-questions involved which require separate consideration:
- H.L.A. Hart, "Prolegomenon to the Principles of Punishment" in Punishment and
Responsibility - Essays in the Philosophy of Law (1968)
1. What is the justification or purpose of the entire institution of punishment?
2. What is the justification for punishment in a particular case?
3. To whom may the punishment be applied?
4. How severely may we punish?
Identifying the ‘harmful/criminal’
What is the ‘harm’?
- A Wrong which violates a duty
- Affects the autonomy of another
- Causes serious offence
Identifying ‘blameworthy’ conduct
- Some crimes are intrinsically wrong (murder/rape) mala in se
- Others are debateable – mala prohibita
- Objective and subjective blame
Should morality of an act be a key issue in making an act a crime?
, The criminal law is a reflection of corporate or social morality. The wrongdoing which the
criminal law seeks to punish is that which threatens the fundamental values upon which a
society is founded.
Social morality is indefinite and much broader than criminal law.
- Shaw [1962] (convicted of conspiracy to corrupt public morals for publishing a guide
to London prostitutes)
‘residual power to conserve the moral welfare of the state’ - Lord
Simmonds).
Patrick Devlin: ‘i think it is clear that the criminal law as we know it is based upon moral
principle’
Lord Devlin has explained: ‘a public morality is one of the vital ingredients of a society and
that the State has the right to safeguard anything that is essential to its existence’
How well do the courts deal with issues which relate to the boundaries of criminal law? Operation
spanner
Brown [1993] (consenting homosexual sado-masochists who are charged with assaulting
each other).
- defence – acts should not be crimes if freely undertaken by consenting adults and
not affecting others
- conviction upheld by House of Lords supported by European Court of Human Rights
in Laskey v UK [1997]
- 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
Wilson [1996] branding wife’s buttocks - consent could be a defence
Emmett 1999 – Court of Appeal disagreed - consent is immaterial where realistic risk of
harm beyond merely transient or trivial injury. In such a case, it is appropriate for the
criminal law to interfere.
Competing views on enforcement of morals-
Hart v Devlin debate:
Lord Devlin:
Enforcement of Morals
A shared morality is necessary for individuals to have meaningful existence within society.
Standard is of the ma 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
Social intervention is only justified to prevent harm to another
Can only legislate against harm to self if serious public interest at stake
Supposed ‘immorality’ is not sufficiently good reason to criminalise behaviour
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 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.
- only be made criminal where there is an objective harm to another; a ‘set back’ to
another’s interests through a ‘wrong’ (Feinberg; 1998)
- forces legislators/courts to examine precisely what the potential ill effects of acts are
- for example, where there is consent, there is no harm and should be no offence but
Hart accepts ‘paternalism’ as justification to protect young/vulnerable.
Principles of ‘minimum criminalisation’ (Ashworth 2009)
4 main factors:
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
Right not to be punished by the State
- Decision to criminalise is an authorisation to issue punishment, and therefore needs to
be carefully justified
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
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)
Principle does not always provide answers in today’s criminal law
- Social morality and criminal law closely intertwined BUT
o Not all criminal law is about social morality
o Not all social morality is enforced by criminal law
- Many other considerations impinge on application of criminal law
o Politics
o Economic & social considerations
o Morality
Why punish?
Criminal justice inflicts a second harm in the form of punishment on an offender, which requires
justification
Divided into 2 main categories:
