Introduction to Criminal Law:
What is crime?
DEFINITION OF CRIME
⇒ It is difficult to define crime, as it must encompass a range of offences: everything from murder
to motoring offences.
⇒ Farmer argues the definition of crime depends on your perspective (e.g. you will have a
different definition of crime depending on the political and social factors in the country you live).
⇒ Nevertheless, the simple definition is that a crime is conduct defined as such by statute or
by common law. In other words, and not very helpfully, something is a crime if the law says it, is
a crime.
⇒ In Board of Trade v Owen (1957), Lord Tucker defined crime as "an unlawful act or default
which is an offence against the public and renders the person guilty of the act or default liable to
legal punishment".
However, this definition can be criticised as not reflecting current attitudes to crime:
for example, it only mentions ‘punishment’ as a response to crime and not other
responses to crime, such as restoritative justice. (A system of criminal justice which
focuses on the rehabilitation of offenders through reconciliation with victims and the
community at large.)
WHY DO WE NEED A DEFINITION OF CRIME?
⇒ Defining what is a crime is important if we are to distinguish a crime from a civil wrong.
If you assault someone, for example, this is both a crime and a tort. Technically, through
either route (criminal or tort) a financial loss may be incurred by the defendant: in
criminal law the defendant could be fined, whereas in tort law the defendant may be
sued for damages.
Thus, the importance in distinguishing a crime from a civil wrong lies in the moral
blame the defendant will be exposed to if convicted of a crime.
If you are guilty of a crime, you will have to carry a certain level of condemnation (i.e.,
public disapproval) that does not necessarily exist if convicted of a tortious offence.
Although, note, it may still be possible to award punitive damages (Damages exceeding
simple compensation and awarded to punish the defendant.) in civil proceedings (e.g.,
, tort proceedings) if the court regards the tort or breach of contract as a particularly
blameworthy one.
Functions of criminal law
THE MAIN FUNCTIONS
⇒ Maintaining order: Criminal law provides predictability, letting people know what to expect
from others. Without criminal law, there would be chaos and uncertainty.
⇒ Resolving disputes: The law makes it possible to resolve conflicts and disputes between
quarrelling citizens. It provides a peaceful, orderly way to handle grievances.
⇒ Protecting individuals and property: Criminal law protects citizens from criminals who
would inflict physical harm on others or take their possessions.
⇒ Providing for smooth functioning of society: Criminal law enables the government to
collect taxes, control pollution, and accomplish other socially beneficial tasks.
⇒ Safeguarding civil liberties: Criminal law protects individual rights.
ACADEMIC VIEW
⇒ Most academics view the criminal law as having a political function: to maintain order.
⇒ However, Duff (R. A. Duff, ‘Responsibility Citizenship and Criminal Law’ in S. Green and R. A.
Duff (eds) 'Philosophical Foundations of Criminal Law' (Oxford: OUP, 2011)) argues criminal law
enables “perpetrators of public wrongs [to] be called to account” i.e., it allows criminals to be held
responsible for their crimes.
⇒ Check out the aims and objectives of the Criminal Justice System, Aims and Objectives
The purpose of the Criminal Justice System (CJS) is to deliver justice for all, by
convicting and punishing the guilty and helping them to stop offending, while protecting
the innocent. It is responsible for detecting crime and bringing it to justice; and carrying
out the orders of court, such as collecting fines, and supervising community and
custodial punishment.
The key goals for the CJS are:
To improve the effectiveness and efficiency of the CJS in bringing offences to justice.
To increase public confidence in the fairness and effectiveness of the CJS.
To increase victim satisfaction with the police, and victim and witness satisfaction with
the CJS.
, To consistently collect, analyse and use good quality ethnicity data to identify and
address race disproportionality in the CJS; and
To increase the recovery of criminal assets by recovering £250m of assets acquired
through crime by 2009-10.
Working together to cut crime and deliver justice.
The Criminal Justice Strategic Plan 2008-2011 sets out how the agencies of the Criminal Justice
System (CJS) in England and Wales will work together to deliver a justice system which:
Is effective in bringing offences to justice, especially serious offences.
Engages the public and inspires confidence.
Puts the needs of victims at its heart; and has
Simple and efficient processes.
Principles of criminal law
THE LEGALITY PRINCIPLE
⇒ The principle of legality is the legal ideal that requires all law to be clear.
⇒ It requires decision makers to resolve disputes by applying legal rules that have been declared
beforehand, and not to alter the legal situation retrospectively by discretionary departures from
established law.
⇒ In criminal law it means the court should not punish people for acts or omissions that
were not criminal at the time those acts or omissions took place. The principle is also
thought to be violated when the punishment for a particular crime is increased with retrospective
effect.
⇒ It requires the law be capable of being obeyed. If laws were kept secret that would clearly
infringe the legality principle.
⇒ It requires the law be readily available to the public. If a law was made prohibiting your
heart to beat in public that would clearly infringe the legality principle.
RESPONSIBILITY PRINCIPLE
, ⇒ The principle of responsibility is the principle that one should only be found guilty of crimes
they are responsible for. For example, if you were to have a seizure and committed a crime as
a result of that seizure, the principle may be infringed if you were punished for it.
THE MINIMAL CRIMINALISATION PRINCIPLE
⇒ The principle of minimal criminalization articulates that only serious offences which are
adverse to society should be criminalised, but not trivial ones.
⇒ If every tiny offence was criminalised, we would leave with heavily over-crowded prisons.
THE PROPORTIONALITY PRINCIPLE
⇒ The proportionality principle means punishment for a given crime should be roughly
proportional to that crime’s seriousness. It would be an outrage if, for instance, the
punishment for rape was the same as the punishment for speeding.
THE FAIR LABELLING PRINCIPLE
⇒ The fair labelling principle requires that the description of the offence should match the
wrong done (Chalmers and Leverick - Chalmers, J. and Lovesick, F. ‘Fair labelling in criminal
law’ Modern Law Review (2008)). For example, if the defendant kills someone through
negligence, ‘murder’ would not be a fair label to attach to what the defendant did.
Criminal Conduct
AUTONOMY
⇒ When deciding whether conduct should be criminalised the court must take into account
autonomy → this is the idea that one should be able to live their life as they please.
⇒ Criminal law is used to avoid somebody’s practice of autonomy from interfering with another
person’s autonomy.
⇒ The autonomy principle also explains why people should be liable for the bad choices they
make.
⇒ The autonomy principle is not without controversy: it has been argued, for example, that
although the right to choose how to live our lives may be available to the rich, this may not be the
case for the poor.
THE HARM PRINCIPLE
What is crime?
DEFINITION OF CRIME
⇒ It is difficult to define crime, as it must encompass a range of offences: everything from murder
to motoring offences.
⇒ Farmer argues the definition of crime depends on your perspective (e.g. you will have a
different definition of crime depending on the political and social factors in the country you live).
⇒ Nevertheless, the simple definition is that a crime is conduct defined as such by statute or
by common law. In other words, and not very helpfully, something is a crime if the law says it, is
a crime.
⇒ In Board of Trade v Owen (1957), Lord Tucker defined crime as "an unlawful act or default
which is an offence against the public and renders the person guilty of the act or default liable to
legal punishment".
However, this definition can be criticised as not reflecting current attitudes to crime:
for example, it only mentions ‘punishment’ as a response to crime and not other
responses to crime, such as restoritative justice. (A system of criminal justice which
focuses on the rehabilitation of offenders through reconciliation with victims and the
community at large.)
WHY DO WE NEED A DEFINITION OF CRIME?
⇒ Defining what is a crime is important if we are to distinguish a crime from a civil wrong.
If you assault someone, for example, this is both a crime and a tort. Technically, through
either route (criminal or tort) a financial loss may be incurred by the defendant: in
criminal law the defendant could be fined, whereas in tort law the defendant may be
sued for damages.
Thus, the importance in distinguishing a crime from a civil wrong lies in the moral
blame the defendant will be exposed to if convicted of a crime.
If you are guilty of a crime, you will have to carry a certain level of condemnation (i.e.,
public disapproval) that does not necessarily exist if convicted of a tortious offence.
Although, note, it may still be possible to award punitive damages (Damages exceeding
simple compensation and awarded to punish the defendant.) in civil proceedings (e.g.,
, tort proceedings) if the court regards the tort or breach of contract as a particularly
blameworthy one.
Functions of criminal law
THE MAIN FUNCTIONS
⇒ Maintaining order: Criminal law provides predictability, letting people know what to expect
from others. Without criminal law, there would be chaos and uncertainty.
⇒ Resolving disputes: The law makes it possible to resolve conflicts and disputes between
quarrelling citizens. It provides a peaceful, orderly way to handle grievances.
⇒ Protecting individuals and property: Criminal law protects citizens from criminals who
would inflict physical harm on others or take their possessions.
⇒ Providing for smooth functioning of society: Criminal law enables the government to
collect taxes, control pollution, and accomplish other socially beneficial tasks.
⇒ Safeguarding civil liberties: Criminal law protects individual rights.
ACADEMIC VIEW
⇒ Most academics view the criminal law as having a political function: to maintain order.
⇒ However, Duff (R. A. Duff, ‘Responsibility Citizenship and Criminal Law’ in S. Green and R. A.
Duff (eds) 'Philosophical Foundations of Criminal Law' (Oxford: OUP, 2011)) argues criminal law
enables “perpetrators of public wrongs [to] be called to account” i.e., it allows criminals to be held
responsible for their crimes.
⇒ Check out the aims and objectives of the Criminal Justice System, Aims and Objectives
The purpose of the Criminal Justice System (CJS) is to deliver justice for all, by
convicting and punishing the guilty and helping them to stop offending, while protecting
the innocent. It is responsible for detecting crime and bringing it to justice; and carrying
out the orders of court, such as collecting fines, and supervising community and
custodial punishment.
The key goals for the CJS are:
To improve the effectiveness and efficiency of the CJS in bringing offences to justice.
To increase public confidence in the fairness and effectiveness of the CJS.
To increase victim satisfaction with the police, and victim and witness satisfaction with
the CJS.
, To consistently collect, analyse and use good quality ethnicity data to identify and
address race disproportionality in the CJS; and
To increase the recovery of criminal assets by recovering £250m of assets acquired
through crime by 2009-10.
Working together to cut crime and deliver justice.
The Criminal Justice Strategic Plan 2008-2011 sets out how the agencies of the Criminal Justice
System (CJS) in England and Wales will work together to deliver a justice system which:
Is effective in bringing offences to justice, especially serious offences.
Engages the public and inspires confidence.
Puts the needs of victims at its heart; and has
Simple and efficient processes.
Principles of criminal law
THE LEGALITY PRINCIPLE
⇒ The principle of legality is the legal ideal that requires all law to be clear.
⇒ It requires decision makers to resolve disputes by applying legal rules that have been declared
beforehand, and not to alter the legal situation retrospectively by discretionary departures from
established law.
⇒ In criminal law it means the court should not punish people for acts or omissions that
were not criminal at the time those acts or omissions took place. The principle is also
thought to be violated when the punishment for a particular crime is increased with retrospective
effect.
⇒ It requires the law be capable of being obeyed. If laws were kept secret that would clearly
infringe the legality principle.
⇒ It requires the law be readily available to the public. If a law was made prohibiting your
heart to beat in public that would clearly infringe the legality principle.
RESPONSIBILITY PRINCIPLE
, ⇒ The principle of responsibility is the principle that one should only be found guilty of crimes
they are responsible for. For example, if you were to have a seizure and committed a crime as
a result of that seizure, the principle may be infringed if you were punished for it.
THE MINIMAL CRIMINALISATION PRINCIPLE
⇒ The principle of minimal criminalization articulates that only serious offences which are
adverse to society should be criminalised, but not trivial ones.
⇒ If every tiny offence was criminalised, we would leave with heavily over-crowded prisons.
THE PROPORTIONALITY PRINCIPLE
⇒ The proportionality principle means punishment for a given crime should be roughly
proportional to that crime’s seriousness. It would be an outrage if, for instance, the
punishment for rape was the same as the punishment for speeding.
THE FAIR LABELLING PRINCIPLE
⇒ The fair labelling principle requires that the description of the offence should match the
wrong done (Chalmers and Leverick - Chalmers, J. and Lovesick, F. ‘Fair labelling in criminal
law’ Modern Law Review (2008)). For example, if the defendant kills someone through
negligence, ‘murder’ would not be a fair label to attach to what the defendant did.
Criminal Conduct
AUTONOMY
⇒ When deciding whether conduct should be criminalised the court must take into account
autonomy → this is the idea that one should be able to live their life as they please.
⇒ Criminal law is used to avoid somebody’s practice of autonomy from interfering with another
person’s autonomy.
⇒ The autonomy principle also explains why people should be liable for the bad choices they
make.
⇒ The autonomy principle is not without controversy: it has been argued, for example, that
although the right to choose how to live our lives may be available to the rich, this may not be the
case for the poor.
THE HARM PRINCIPLE
