Introduction to criminal law.
We learn only the criminal law of England and Wales.
We learn substantive criminal law - not criminal procedure, evidence or sentencing in
this module.
We are looking at offences and defences.
Context of procedure:
The police investigate suspects of crime and gather evidence - criminal investigation.
If enough evidence to prosecute, and in public interest to do so, the Crown
Prosecution Service (CPS) decides whether to prosecute D for any crime the commit.
D will be represented by a defence lawyer, either solicitor or barrister.
D plead guilty - no trial and case go straight to sentencing.
D plead not guilty - defence team defends case using evidence to rebut CPS
evidence, trail judge adjudicate and sum up case for jury (only in crown court) whilst
in magistrate's court, sum up for 3 magistrates or judge.
Judge is the tribunal of law, and the jury is the tribunal of fact.
Jury declares D not guilty or guilty.
Burden of proof - prosecution, prosecute D beyond reasonable doubt that D
committed the crime.
Standard of proof - standard is higher in criminal law as prosecution must be certain
that D committed the crime before D is prosecuted.
Criminal court’s structure:
Her majesty's Courts Service - summary, either-way and indictable-only offences.
Court of Appeal Criminal Division. - reported cases.
Supreme Court (formerly House of Lords). - reported cases.
SC is highest court of appeal. S
Main sources of Criminal law in England are statutes and cases.
Other sources are Human Rights Act 1998 incorporated the European Convention on
Human Rights 1950 into domestic law.
European and international law are also used as sources (not so much after Brexit).
, The scope of criminal law.
What is a crime?
Legal violation as defined by statutes or case law.
Social construction: historical, social, cultural context.
There are criminal wrongs and civil wrongs.
A crime can be defined by distinguishing it from civil law.
Some crimes are only forbidden by civil law; however, some can be
both forbidden by civil and criminal e.g., if you punch someone it could
be battery and also trespassing of the person.
Criminal law changes all the time, it has a historical context. E.g., homosexuality
was a crime but now is not, as well as marital rape.
Crime is a social construction - crime depends on its context.
Principles of criminalisation:
Minimal criminalisation:
Criminalisation should be a last resort.
When deciding criminalisation of acts, it may come out of practical
necessity, there may be a loss of moral censure in criminal law which
would cause too many offences, debate whether civil law or
educational methods may be better and think about personal
autonomy.
Personal autonomy can be thought to be too individualistic in this
society.
Harm principle
This governs criminal law.
Offers objective way of criminal law.
Criminalisation to prevent harm to others - do not focus on morality,
but harm.
Must not risk causing harm to others - this is decriminalising
homosexuality and criminalising smoking in public places e.g., shops.
It is a crime to cause serious injury/harm to another person.
Loss of property is also a harmful result to prevent.
Moral conduct is sometimes prohibited e.g., rape offences.
Rape is a conduct offence, not a result crime.
Harm can also include psychiatric or psychological harm.
Some offences are exposing risk to others, even if there is no harm
caused e.g., drink driving.
Legal moralism
Only wrongful harms should be criminalised.
Looking at moral wrongfulness without harm would be too objective to
criminalise and would expand offences as morals are often not shared.
The law must balance public and private wrongful harms, e.g.,
domestic abuse is illegal while breaking up with someone harshly is
not.
Anthony Duff says we should only look at public wrongs, not private
wrongs.
Paternalism
This demands harm also, however this justified the criminalisation of
self-harm e.g., duty to wear a seat belt.
Some laws are protecting yourself from harm.
Invasive paternalism laws say that if you consent to certain harm e.g.,
sports and tattoos.
We learn only the criminal law of England and Wales.
We learn substantive criminal law - not criminal procedure, evidence or sentencing in
this module.
We are looking at offences and defences.
Context of procedure:
The police investigate suspects of crime and gather evidence - criminal investigation.
If enough evidence to prosecute, and in public interest to do so, the Crown
Prosecution Service (CPS) decides whether to prosecute D for any crime the commit.
D will be represented by a defence lawyer, either solicitor or barrister.
D plead guilty - no trial and case go straight to sentencing.
D plead not guilty - defence team defends case using evidence to rebut CPS
evidence, trail judge adjudicate and sum up case for jury (only in crown court) whilst
in magistrate's court, sum up for 3 magistrates or judge.
Judge is the tribunal of law, and the jury is the tribunal of fact.
Jury declares D not guilty or guilty.
Burden of proof - prosecution, prosecute D beyond reasonable doubt that D
committed the crime.
Standard of proof - standard is higher in criminal law as prosecution must be certain
that D committed the crime before D is prosecuted.
Criminal court’s structure:
Her majesty's Courts Service - summary, either-way and indictable-only offences.
Court of Appeal Criminal Division. - reported cases.
Supreme Court (formerly House of Lords). - reported cases.
SC is highest court of appeal. S
Main sources of Criminal law in England are statutes and cases.
Other sources are Human Rights Act 1998 incorporated the European Convention on
Human Rights 1950 into domestic law.
European and international law are also used as sources (not so much after Brexit).
, The scope of criminal law.
What is a crime?
Legal violation as defined by statutes or case law.
Social construction: historical, social, cultural context.
There are criminal wrongs and civil wrongs.
A crime can be defined by distinguishing it from civil law.
Some crimes are only forbidden by civil law; however, some can be
both forbidden by civil and criminal e.g., if you punch someone it could
be battery and also trespassing of the person.
Criminal law changes all the time, it has a historical context. E.g., homosexuality
was a crime but now is not, as well as marital rape.
Crime is a social construction - crime depends on its context.
Principles of criminalisation:
Minimal criminalisation:
Criminalisation should be a last resort.
When deciding criminalisation of acts, it may come out of practical
necessity, there may be a loss of moral censure in criminal law which
would cause too many offences, debate whether civil law or
educational methods may be better and think about personal
autonomy.
Personal autonomy can be thought to be too individualistic in this
society.
Harm principle
This governs criminal law.
Offers objective way of criminal law.
Criminalisation to prevent harm to others - do not focus on morality,
but harm.
Must not risk causing harm to others - this is decriminalising
homosexuality and criminalising smoking in public places e.g., shops.
It is a crime to cause serious injury/harm to another person.
Loss of property is also a harmful result to prevent.
Moral conduct is sometimes prohibited e.g., rape offences.
Rape is a conduct offence, not a result crime.
Harm can also include psychiatric or psychological harm.
Some offences are exposing risk to others, even if there is no harm
caused e.g., drink driving.
Legal moralism
Only wrongful harms should be criminalised.
Looking at moral wrongfulness without harm would be too objective to
criminalise and would expand offences as morals are often not shared.
The law must balance public and private wrongful harms, e.g.,
domestic abuse is illegal while breaking up with someone harshly is
not.
Anthony Duff says we should only look at public wrongs, not private
wrongs.
Paternalism
This demands harm also, however this justified the criminalisation of
self-harm e.g., duty to wear a seat belt.
Some laws are protecting yourself from harm.
Invasive paternalism laws say that if you consent to certain harm e.g.,
sports and tattoos.
