Criminal law notes.
Criminalization principles.
1. Individual autonomy. This means people should have the right to choose how to live
their lives and freedom to make whichever choices so long as they don’t deny other
people their right to live as well. Criminal law exists in order to protect the freedom of
individuals. This helps individuals to also take responsibility for their choices and the
results of those choices. This also says individuals should not be criminally
responsible for conduct they didn’t freely choose
- The harm principle. It emphasizes on protecting individuals from harm
- The offence principle. It emphasizes on protecting individuals from offence
2. Social welfare. This focuses on society as a whole e.g., criminal offences against the
environment, tax evasion, driving without a license. However, because of how broad
this is and the difference in opinions, an activity should not be criminalized on the
basis of vague assertions that it harms society; there must be empirical evidence. It
should show how it harms society and evidence is provided
3. The principle of legality. This is also known as the rule of law. According to Lord
Bingham;
- The criminal law should be sufficiently clear and certain to enable people to know
which conduct is forbidden
- No one should be punished for any act that was not clearly punishable when the
act was done
The anatomy of a crime.
Before concluding that a crime has been committed, three things should be established;
1. Actus reus (the guilty act). This specifies the conduct that must be proved for the
offence or criminal act to have occurred
2. Mens rea (the guilty mind). This specifies the state of mind the defendant must have
possessed at the time, in order to be convicted of the offence or crime
3. Substantive defenses. When the defendant pleads this, he is found not guilty despite
the presence of the other two elements
For the prosecution to establish a criminal liability, there must be;
- The actus reus (the conduct element)
- The mens rea (the mental element)
- The absence of a substantive element
Actus reus
This is the conduct element of an offence.
- Behavior. This means some action the defendant must have performed. In some
cases, it is enough to show that the defendant did something e.g. in murder, the
defendant did something that caused the victim’s death
- Circumstances. This specifies the circumstances that must have existed at the time
of the defendant’s behavior
- Consequences. This specifies the consequences that must have been a result of the
defendant’s behavior
Some cases may not consist of all these three elements
Result crimes consist of the consequential element
Generally;
- There is no actus reus if the defendant’s conduct was involuntary
, - A defendant can’t normally be held criminally liable for omissions (failure to act)
except where one has the duty to act
- The defendant will only be held criminally liable if his behavior was a factual and
legal cause of the specific consequence
Mens rea
This looks at the state of mind of the defendant at the time he does the actus reus
For instance, in rape, one mens rea requirement is the lack of reasonable belief that the victim
consented to having sex
- Ignorance (not knowing it was a crime) is not a defense to a criminal charge
- A worthy (commendable) motive is not a defense to a criminal charge
Coincidence of actus reus and mens rea
Types of offence;
- Homicide
- Non-fatal offences against the person
- Sexual offence
- Property offence
For a defendant to be proven of the criminal act, all requirements of the actus reus and mens
rea must be established and that they coincided (occurred) at the same time
- For instance, if Andrew accidentally drops an ipad and later realizes that it
belongs to Robert whom he hates and was looking for a way to upset him, he will
not be found of the guilty charge because he lacked the mens rea at the time it
happened and by the time the mens rea occurred, the actus reus had already
occurred
Result crimes; the crimes with a consequential element (meaning the defendant’s behavior
caused the consequence)
- In result crimes, the relevant time point is when the defendant’s behavior caused
the consequence, not when the consequence actually occurs
- If Andrew intentionally poisons Robert, he will be convicted of the criminal
charge even if he later changes his mind and tries to save him, because there was
the presence of both the actus reus and mens rea at the time of occurrence
Substantive defenses.
There is what is known as denial defenses. This is where the defendant claims the prosecution
has failed to prove that there was either an actus reus or mens rea
- Andrew can say that the iPad is not destroyed indeed
- In rape, one can claim that the sexual act was indeed consensual (voluntary)
- In murder, he can prove he had no intention to kill the victim
Substantive defenses can only apply where the actus reus and mens rea have been established
There are mainly five types;
- Duress by threats
- Duress of circumstances
- Private defense
- Prevention of crime
- Necessity
The defendant is basically saying that indeed, they committed the actus reus and mens rea but
there is still a good reason why they shouldn’t be proven guilty by the prosecution
Terms.
, 1. The transaction principle; this groups together a series of actions as one course of
conduct that is considered as a whole
2. Result substantive defense; this justifies or excuses committing an actus reus with the
required mens rea
According to the case Fagan v Metropolitan Police Commissioner,
- A distinction must be drawn between acts which are complete and acts which are
continuing
- If the defendant did not possess the necessary mens rea at the establishment of the
act but formed mens rea while the act was still continuing, he may be convicted of
the offence
- If the defendant only formed mens rea after the act was complete, he can’t be
convicted of the offence (due to lack of mens rea)
The transaction principle is the exception to the normal requirement that the actus reus and
mens rea must coincide at the same time for an offence to be established
- By attempting to hide the body after knocking him thinking he is dead and he hits
his head which leads to his death according to medical evidence, he may still be
found guilty because he is attempting to conceal previous unlawful conduct
- As long as there is actus reus and the necessary mens rea at one stage of the
transaction, the defendant may still be held liable even if they don’t coincide at the
same time according to the transaction principle
- The transaction principle applies to continuing acts
Notes from the quizzes.
- According to the harm principle, the criminal law should be used to prevent harm
to others
- Feinberg refines the harm principle and clearly identifies how a person harms
another and deduces (concludes) positive conditions which justify the use of the
criminal law
- According to Feinberg, criminal law can be justified by the offence principle
when an offended state is produced in another without justification and excuse
(when someone is offended without any reason or excuse)
- However, mere affront to sensibility should not be equated with offence according
to Simester and Von Hirsch
- Intervention through the criminalisation of conduct can be justified where it
reduces the incidence of the proscribed (forbidden) conduct, and also censures
those who engage in it where neither aim can be achieved more effectively by less
coercive means (need to ask my professor about this)
- The exceptions that were recognised within the presumption of innocence are
insanity and statutory defences (which the defendant must prove)
- To establish criminal liability, prosecution must prove;
Actus reus of the offence
Necessary mens rea
Absence of a substantive defence (case Woolmington v DPP)
- If the prosecution fails to establish either the actus reus or mens rea set out in the
definition of the offence, or if it fails to disprove any substantive defence raised by
the defendant, there can be no conviction of the offence
Criminalization principles.
1. Individual autonomy. This means people should have the right to choose how to live
their lives and freedom to make whichever choices so long as they don’t deny other
people their right to live as well. Criminal law exists in order to protect the freedom of
individuals. This helps individuals to also take responsibility for their choices and the
results of those choices. This also says individuals should not be criminally
responsible for conduct they didn’t freely choose
- The harm principle. It emphasizes on protecting individuals from harm
- The offence principle. It emphasizes on protecting individuals from offence
2. Social welfare. This focuses on society as a whole e.g., criminal offences against the
environment, tax evasion, driving without a license. However, because of how broad
this is and the difference in opinions, an activity should not be criminalized on the
basis of vague assertions that it harms society; there must be empirical evidence. It
should show how it harms society and evidence is provided
3. The principle of legality. This is also known as the rule of law. According to Lord
Bingham;
- The criminal law should be sufficiently clear and certain to enable people to know
which conduct is forbidden
- No one should be punished for any act that was not clearly punishable when the
act was done
The anatomy of a crime.
Before concluding that a crime has been committed, three things should be established;
1. Actus reus (the guilty act). This specifies the conduct that must be proved for the
offence or criminal act to have occurred
2. Mens rea (the guilty mind). This specifies the state of mind the defendant must have
possessed at the time, in order to be convicted of the offence or crime
3. Substantive defenses. When the defendant pleads this, he is found not guilty despite
the presence of the other two elements
For the prosecution to establish a criminal liability, there must be;
- The actus reus (the conduct element)
- The mens rea (the mental element)
- The absence of a substantive element
Actus reus
This is the conduct element of an offence.
- Behavior. This means some action the defendant must have performed. In some
cases, it is enough to show that the defendant did something e.g. in murder, the
defendant did something that caused the victim’s death
- Circumstances. This specifies the circumstances that must have existed at the time
of the defendant’s behavior
- Consequences. This specifies the consequences that must have been a result of the
defendant’s behavior
Some cases may not consist of all these three elements
Result crimes consist of the consequential element
Generally;
- There is no actus reus if the defendant’s conduct was involuntary
, - A defendant can’t normally be held criminally liable for omissions (failure to act)
except where one has the duty to act
- The defendant will only be held criminally liable if his behavior was a factual and
legal cause of the specific consequence
Mens rea
This looks at the state of mind of the defendant at the time he does the actus reus
For instance, in rape, one mens rea requirement is the lack of reasonable belief that the victim
consented to having sex
- Ignorance (not knowing it was a crime) is not a defense to a criminal charge
- A worthy (commendable) motive is not a defense to a criminal charge
Coincidence of actus reus and mens rea
Types of offence;
- Homicide
- Non-fatal offences against the person
- Sexual offence
- Property offence
For a defendant to be proven of the criminal act, all requirements of the actus reus and mens
rea must be established and that they coincided (occurred) at the same time
- For instance, if Andrew accidentally drops an ipad and later realizes that it
belongs to Robert whom he hates and was looking for a way to upset him, he will
not be found of the guilty charge because he lacked the mens rea at the time it
happened and by the time the mens rea occurred, the actus reus had already
occurred
Result crimes; the crimes with a consequential element (meaning the defendant’s behavior
caused the consequence)
- In result crimes, the relevant time point is when the defendant’s behavior caused
the consequence, not when the consequence actually occurs
- If Andrew intentionally poisons Robert, he will be convicted of the criminal
charge even if he later changes his mind and tries to save him, because there was
the presence of both the actus reus and mens rea at the time of occurrence
Substantive defenses.
There is what is known as denial defenses. This is where the defendant claims the prosecution
has failed to prove that there was either an actus reus or mens rea
- Andrew can say that the iPad is not destroyed indeed
- In rape, one can claim that the sexual act was indeed consensual (voluntary)
- In murder, he can prove he had no intention to kill the victim
Substantive defenses can only apply where the actus reus and mens rea have been established
There are mainly five types;
- Duress by threats
- Duress of circumstances
- Private defense
- Prevention of crime
- Necessity
The defendant is basically saying that indeed, they committed the actus reus and mens rea but
there is still a good reason why they shouldn’t be proven guilty by the prosecution
Terms.
, 1. The transaction principle; this groups together a series of actions as one course of
conduct that is considered as a whole
2. Result substantive defense; this justifies or excuses committing an actus reus with the
required mens rea
According to the case Fagan v Metropolitan Police Commissioner,
- A distinction must be drawn between acts which are complete and acts which are
continuing
- If the defendant did not possess the necessary mens rea at the establishment of the
act but formed mens rea while the act was still continuing, he may be convicted of
the offence
- If the defendant only formed mens rea after the act was complete, he can’t be
convicted of the offence (due to lack of mens rea)
The transaction principle is the exception to the normal requirement that the actus reus and
mens rea must coincide at the same time for an offence to be established
- By attempting to hide the body after knocking him thinking he is dead and he hits
his head which leads to his death according to medical evidence, he may still be
found guilty because he is attempting to conceal previous unlawful conduct
- As long as there is actus reus and the necessary mens rea at one stage of the
transaction, the defendant may still be held liable even if they don’t coincide at the
same time according to the transaction principle
- The transaction principle applies to continuing acts
Notes from the quizzes.
- According to the harm principle, the criminal law should be used to prevent harm
to others
- Feinberg refines the harm principle and clearly identifies how a person harms
another and deduces (concludes) positive conditions which justify the use of the
criminal law
- According to Feinberg, criminal law can be justified by the offence principle
when an offended state is produced in another without justification and excuse
(when someone is offended without any reason or excuse)
- However, mere affront to sensibility should not be equated with offence according
to Simester and Von Hirsch
- Intervention through the criminalisation of conduct can be justified where it
reduces the incidence of the proscribed (forbidden) conduct, and also censures
those who engage in it where neither aim can be achieved more effectively by less
coercive means (need to ask my professor about this)
- The exceptions that were recognised within the presumption of innocence are
insanity and statutory defences (which the defendant must prove)
- To establish criminal liability, prosecution must prove;
Actus reus of the offence
Necessary mens rea
Absence of a substantive defence (case Woolmington v DPP)
- If the prosecution fails to establish either the actus reus or mens rea set out in the
definition of the offence, or if it fails to disprove any substantive defence raised by
the defendant, there can be no conviction of the offence
