Introduction
What is special about criminal law?
• There is state punishment - state brings the action whereas with private law the initiation is by
private individuals and there is soft-law punishments
• Not fixed - can be adapted as cultural/social/political circumstances of country change
• Burden of proof is upon prosecution to prove the defendant guilty
• Allows for punishment unlike other areas of the law
• Comprised of a 'fabric' (principles/rules/standards/patterns) which are set down in cases and
statutes
• Discretion is normally used by officials to progress/delay/drop a case - enforcement of criminal
law depends on these people as they will not go out and look for offenders or prosecute every
person - therefore its social reality is different to the legislation (police are reactive whereas
law enforcement officials are proactive)
Do we over criminalize? (turn an activity into a criminal offense by making it illegal)
• We have 9,000 statutes which create criminal offence (chalmers and leverick claim recent
governments have been responsible for this as 1,395 offences were created in 97/98 and 634
in 2010/11
• 'easy response to criminilaze to fix the political issues of the day'
• Soft drugs --> black market/police start to adopt intrusive methods of enforcement/police
become corrupt or selective in their enforcement (in reality the law has little effect on drug
dealings so why criminalize it so much?)
• Enforcement of criminal law is selective anyway and tends to bear down the most on the least
advantaged
• Modern criminalization is aimed at businesses - however they can't emotionally suffer and can
be created/destroyed at will
• Autonomy (right to live one's life as one likes) - justified existence of criminal law, restricts
extent of criminal law, and justified censure
• Harm Principle - John Mill 'The only purpose for which power can be rightfully exercised over
any member of a civilized community against his will is to prevent harm to others' (explains
what sort of behavior should not be criminalized)
How do criminal cases progress through the court system?
• Magistrates and crown court (latter has a jury of 12 people)
• Each case is heavily reliant on victims and other members of the public (often not reported)
• 6% of reported crimes end in conviction
• 95% criminal cases dealt with in magistrates court (67% no contested trial as defendant pleads
guilty)
• Both prosecution and defense have right to insist on court trial
• Higher courts don’t include a jury
1. Arrest – A person is arrested by a law enforcement officer who either sees a crime happen or has
a warrant for arrest when probable cause exists that a person committed a crime. When a person is
arrested, the person must be brought before a judge for an initial appearance within 24 hours of
being arrested or else be released.
2. Initial Appearance – At the initial appearance, the judge determines the defendant’s name and
address, informs the defendant of the charges and of the right to remain silent and to have an
attorney. The judge appoints an attorney if the defendant cannot afford one and sets the conditions
for release from jail.
,3. Preliminary Hearing – If a preliminary hearing is held, the judge hears evidence and testimony
from witnesses called by the prosecuting attorney and the defendant’s attorney. If the judge
determines there is enough evidence to believe the defendant probably committed the crime, the
defendant is held for trial in a superior court, and an arraignment date is set.
4. Arraignment – At the arraignment, the defendant enters a plea of guilty, not guilty, or no contest
(nolo contendere). If the defendant enters a not guilty plea, the judge will set a trial date. If the
defendant enters a guilty plea or declares no contest to the charges, the judge will set a date to
sentence the defendant for the crime.
5. Trial
https://www.azcourts.gov/guidetoazcourts/How-a-Case-Moves-Through-the-Court-System
What is the role of the judiciary in applying and interpreting criminal law?
• In bald form, criminal law says any doubt in meaning of statutory provision should be resolved
in favour of the defendant
• Manipulate common law's vague specifications to fit a particular case
What is the significance of punishment for understanding criminal law?
• Youth justice board diverts most young offenders away from court by using alternative
approaches
• Civil penalty is a fixed punishment imposed where there is no legal possibility of court trial
Consequentialist Theories of Punishment
1. Personal deterrence - punishment will deter them from re-committing crime
2. General deterrence - general public hear of offender's punishment
3. Rehabilitation - reform/educate offender
4. Incapacitation - offender removed from society by imprisonment
5. Restorative justice - criminal law should try and restore broken relationship between victim
and offender or compensate victim
Non-Consequentialist Theories of Punishment
= retributive theory - punishment is justified because the offender deserves it
= punishment is an expression of censure so promotes social cohesion and channels of public
outrage
What is the purpose of criminal law?
• Rules put in place for the 'public good' to keep everyone safe from force/exploitation - social
control
• Provide specific definition of what constitutes a crime and prescribe punishments for
committing such a crime
• System of punishment of wrongdoers by the state - intended to maintain social order by
deterring behavior
What is the relationship between criminal law and morality?
• Women cautioned rather than prosecuted at a higher rate than men due to police discrepancy
• Takes effect when someone develops moral autonomy (law doesn’t treat criminal liability as
arising until a child is at least 10)
• Law seeks to shield those who lack capacities to reach moral autonomy (insanity)
, • Joel Feinberg's view on 'harm principle' - sum of human misery created with some penalties
may be too great in comparison with gain made in terms of harm reduction
• 'it is a better society if everyone choses to be good than if everyone is compelled to be good'
To what extent is it legitimate for the state to use the criminal law against its citizens?
• National Standards prefer police to use formal caution of prosecution when they are relatively
minor/old/infirm/suffering from mental disturbance
• CPS has power to offer an offender a conditional caution
Proposals for a Criminal Code: (would bring together criminal offences and defenses in one single
document)
Advantages
1. Certainty - avoids common law problem where vaguely defined offences are open to
interpretation
2. Accessibility - one document accessible to public
3. Efficiency - make jury's job easier and lessen need for appeals to court of appeal following
misdirections by judges
4. Consistency - remove ambiguities
5. Updating - opportunity to get rid of 'old fashioned offences'
Disadvantages
1. Obsession with consistency - current contradictions in criminal law reflect complexity of
political/ethical/practical issues involved in developing the law
2. Benefits of code are over-emphasized - case of conjoined twins raised difficult questions for
law and morality and would have been no easier with a code
1989 Law Commission pushed for one but didn't succeed
Different to civil law which focuses on the person who has suffered and aims to compensate them -
burden of prood places upon party who makes an allegation (claimant will have burden of proof and
standard of proof is that the balance of probabilities (facts alleged must be more likely to be true
than false)
Principles of criminal law
Principles that underpin our criminal laws - all balanced against each other but weight on each
changes depending on the case
Principle of Legality (Fair Warning)
• Criminal offences should be clearly enough defined so people can conform
• Law must be capable of being obeyed
• Law must be readily available to the public
• 9,000 statutes
Principle of Responsibility
• People should only be guilty in respect of conduct for which they are responsible
Principle of Minimal Criminalisation
• Criminal law should prohibit something only if absolutely necessary (overcrowded
courts/prisons)
• Criminal law is only one wag of influencing behaviour that is seen as undesirable
(education/shaming/civil proceedings are alternatives)
, Principle of Proportionality
• Sentence accorded to a crime should reflect the seriousness of the offence
Principle of Fair Labelling
• The description of the offence should match the wrong done (state of mind of defendant is an
important aspect of the wrong done to the victim)
Autonomy
• To be free to act and pursue our goals unrestrained (criminal law by design restricts our
options by criminalising certain conduct)
Morality
• Principles of welfare promotes role of law in protecting society from harm
Justifying criminalisation? - what should be criminalised? (2 political philosophies)
Harm Principle -
• conduct from Defendant that infringes the autonomy of the Victim (physically or otherwise eg
financial/coercion) or causes serious offense to victim. John Stuart Mill 1959 (just because its
immoral or harmful to defendant it isn't a good enough reason to justify criminalisation)
• Feinberg took idea further 1984 - legal moralism (bring in criminal laws to prevent immoral
conduct) - agrees with Mills as thinks criminalization is required to prevent serious harm
against others
Moral Wrongs
• 1957 Wolfenden Committee recommended the legislation of prostitution and homosexuality
(were legal laws needed to prohibit them?)
• Professor Hart v Lord Devlin (debate) - D said morality is a justification for bringing in criminal
laws and suggested institutions of criminal justice system has a duty to uphold morality in
society whereas H agreed with WC as said there should be a clear line drawn between
morality and law (blurry line) - H thinks legal system should be based on logical ideas
producing 'correct' decisions from rules
Actus Reus and Mens Rea
Actus Reus - guilty act (conduct, circumstance and result) identifies conduct which criminal law
considers harmful and tells us what we can and cannot do. Can involve 3 different aspects:
• Proof defendant did a particular act (conduct) - physical
• Proof act caused particular result
• Proof act/result occurred under certain circumstances
Mens Reus - guilty mind (not the same as moral blameworthiness so not the same as motive,
its about legal culpability) -
• Intention
• Recklessness
• Malice
• Negligence
Strict liability - not all offences require a guilty mind (drink driving)
Every criminal offense needs an actus reus, but doesn't necessarily need a mens reus
(defences mean that a MR is not involved)
What is special about criminal law?
• There is state punishment - state brings the action whereas with private law the initiation is by
private individuals and there is soft-law punishments
• Not fixed - can be adapted as cultural/social/political circumstances of country change
• Burden of proof is upon prosecution to prove the defendant guilty
• Allows for punishment unlike other areas of the law
• Comprised of a 'fabric' (principles/rules/standards/patterns) which are set down in cases and
statutes
• Discretion is normally used by officials to progress/delay/drop a case - enforcement of criminal
law depends on these people as they will not go out and look for offenders or prosecute every
person - therefore its social reality is different to the legislation (police are reactive whereas
law enforcement officials are proactive)
Do we over criminalize? (turn an activity into a criminal offense by making it illegal)
• We have 9,000 statutes which create criminal offence (chalmers and leverick claim recent
governments have been responsible for this as 1,395 offences were created in 97/98 and 634
in 2010/11
• 'easy response to criminilaze to fix the political issues of the day'
• Soft drugs --> black market/police start to adopt intrusive methods of enforcement/police
become corrupt or selective in their enforcement (in reality the law has little effect on drug
dealings so why criminalize it so much?)
• Enforcement of criminal law is selective anyway and tends to bear down the most on the least
advantaged
• Modern criminalization is aimed at businesses - however they can't emotionally suffer and can
be created/destroyed at will
• Autonomy (right to live one's life as one likes) - justified existence of criminal law, restricts
extent of criminal law, and justified censure
• Harm Principle - John Mill 'The only purpose for which power can be rightfully exercised over
any member of a civilized community against his will is to prevent harm to others' (explains
what sort of behavior should not be criminalized)
How do criminal cases progress through the court system?
• Magistrates and crown court (latter has a jury of 12 people)
• Each case is heavily reliant on victims and other members of the public (often not reported)
• 6% of reported crimes end in conviction
• 95% criminal cases dealt with in magistrates court (67% no contested trial as defendant pleads
guilty)
• Both prosecution and defense have right to insist on court trial
• Higher courts don’t include a jury
1. Arrest – A person is arrested by a law enforcement officer who either sees a crime happen or has
a warrant for arrest when probable cause exists that a person committed a crime. When a person is
arrested, the person must be brought before a judge for an initial appearance within 24 hours of
being arrested or else be released.
2. Initial Appearance – At the initial appearance, the judge determines the defendant’s name and
address, informs the defendant of the charges and of the right to remain silent and to have an
attorney. The judge appoints an attorney if the defendant cannot afford one and sets the conditions
for release from jail.
,3. Preliminary Hearing – If a preliminary hearing is held, the judge hears evidence and testimony
from witnesses called by the prosecuting attorney and the defendant’s attorney. If the judge
determines there is enough evidence to believe the defendant probably committed the crime, the
defendant is held for trial in a superior court, and an arraignment date is set.
4. Arraignment – At the arraignment, the defendant enters a plea of guilty, not guilty, or no contest
(nolo contendere). If the defendant enters a not guilty plea, the judge will set a trial date. If the
defendant enters a guilty plea or declares no contest to the charges, the judge will set a date to
sentence the defendant for the crime.
5. Trial
https://www.azcourts.gov/guidetoazcourts/How-a-Case-Moves-Through-the-Court-System
What is the role of the judiciary in applying and interpreting criminal law?
• In bald form, criminal law says any doubt in meaning of statutory provision should be resolved
in favour of the defendant
• Manipulate common law's vague specifications to fit a particular case
What is the significance of punishment for understanding criminal law?
• Youth justice board diverts most young offenders away from court by using alternative
approaches
• Civil penalty is a fixed punishment imposed where there is no legal possibility of court trial
Consequentialist Theories of Punishment
1. Personal deterrence - punishment will deter them from re-committing crime
2. General deterrence - general public hear of offender's punishment
3. Rehabilitation - reform/educate offender
4. Incapacitation - offender removed from society by imprisonment
5. Restorative justice - criminal law should try and restore broken relationship between victim
and offender or compensate victim
Non-Consequentialist Theories of Punishment
= retributive theory - punishment is justified because the offender deserves it
= punishment is an expression of censure so promotes social cohesion and channels of public
outrage
What is the purpose of criminal law?
• Rules put in place for the 'public good' to keep everyone safe from force/exploitation - social
control
• Provide specific definition of what constitutes a crime and prescribe punishments for
committing such a crime
• System of punishment of wrongdoers by the state - intended to maintain social order by
deterring behavior
What is the relationship between criminal law and morality?
• Women cautioned rather than prosecuted at a higher rate than men due to police discrepancy
• Takes effect when someone develops moral autonomy (law doesn’t treat criminal liability as
arising until a child is at least 10)
• Law seeks to shield those who lack capacities to reach moral autonomy (insanity)
, • Joel Feinberg's view on 'harm principle' - sum of human misery created with some penalties
may be too great in comparison with gain made in terms of harm reduction
• 'it is a better society if everyone choses to be good than if everyone is compelled to be good'
To what extent is it legitimate for the state to use the criminal law against its citizens?
• National Standards prefer police to use formal caution of prosecution when they are relatively
minor/old/infirm/suffering from mental disturbance
• CPS has power to offer an offender a conditional caution
Proposals for a Criminal Code: (would bring together criminal offences and defenses in one single
document)
Advantages
1. Certainty - avoids common law problem where vaguely defined offences are open to
interpretation
2. Accessibility - one document accessible to public
3. Efficiency - make jury's job easier and lessen need for appeals to court of appeal following
misdirections by judges
4. Consistency - remove ambiguities
5. Updating - opportunity to get rid of 'old fashioned offences'
Disadvantages
1. Obsession with consistency - current contradictions in criminal law reflect complexity of
political/ethical/practical issues involved in developing the law
2. Benefits of code are over-emphasized - case of conjoined twins raised difficult questions for
law and morality and would have been no easier with a code
1989 Law Commission pushed for one but didn't succeed
Different to civil law which focuses on the person who has suffered and aims to compensate them -
burden of prood places upon party who makes an allegation (claimant will have burden of proof and
standard of proof is that the balance of probabilities (facts alleged must be more likely to be true
than false)
Principles of criminal law
Principles that underpin our criminal laws - all balanced against each other but weight on each
changes depending on the case
Principle of Legality (Fair Warning)
• Criminal offences should be clearly enough defined so people can conform
• Law must be capable of being obeyed
• Law must be readily available to the public
• 9,000 statutes
Principle of Responsibility
• People should only be guilty in respect of conduct for which they are responsible
Principle of Minimal Criminalisation
• Criminal law should prohibit something only if absolutely necessary (overcrowded
courts/prisons)
• Criminal law is only one wag of influencing behaviour that is seen as undesirable
(education/shaming/civil proceedings are alternatives)
, Principle of Proportionality
• Sentence accorded to a crime should reflect the seriousness of the offence
Principle of Fair Labelling
• The description of the offence should match the wrong done (state of mind of defendant is an
important aspect of the wrong done to the victim)
Autonomy
• To be free to act and pursue our goals unrestrained (criminal law by design restricts our
options by criminalising certain conduct)
Morality
• Principles of welfare promotes role of law in protecting society from harm
Justifying criminalisation? - what should be criminalised? (2 political philosophies)
Harm Principle -
• conduct from Defendant that infringes the autonomy of the Victim (physically or otherwise eg
financial/coercion) or causes serious offense to victim. John Stuart Mill 1959 (just because its
immoral or harmful to defendant it isn't a good enough reason to justify criminalisation)
• Feinberg took idea further 1984 - legal moralism (bring in criminal laws to prevent immoral
conduct) - agrees with Mills as thinks criminalization is required to prevent serious harm
against others
Moral Wrongs
• 1957 Wolfenden Committee recommended the legislation of prostitution and homosexuality
(were legal laws needed to prohibit them?)
• Professor Hart v Lord Devlin (debate) - D said morality is a justification for bringing in criminal
laws and suggested institutions of criminal justice system has a duty to uphold morality in
society whereas H agreed with WC as said there should be a clear line drawn between
morality and law (blurry line) - H thinks legal system should be based on logical ideas
producing 'correct' decisions from rules
Actus Reus and Mens Rea
Actus Reus - guilty act (conduct, circumstance and result) identifies conduct which criminal law
considers harmful and tells us what we can and cannot do. Can involve 3 different aspects:
• Proof defendant did a particular act (conduct) - physical
• Proof act caused particular result
• Proof act/result occurred under certain circumstances
Mens Reus - guilty mind (not the same as moral blameworthiness so not the same as motive,
its about legal culpability) -
• Intention
• Recklessness
• Malice
• Negligence
Strict liability - not all offences require a guilty mind (drink driving)
Every criminal offense needs an actus reus, but doesn't necessarily need a mens reus
(defences mean that a MR is not involved)
