Criminal Law Revision
Essay:
Principles of criminalisation:
Individual Autonomy - autonomy = choice = responsibility
Individual responsibility
Preconditions of criminal liability capacities assumed by law; Duff
general assumption is sane adults may be held liable for their conduct and for
matters within their control, unless have appropriate excuse, e.g. duress
Respect for the liberty and rights of individual
Welfare - collective goals, policy of social defence, morally wrong behaviour and
paternalism
Paternalism - protects those without capacity (Lord Templeman re drugs bad for
individuals in R v Brown)
Legality
Non-retroactivity - Art 7 ECHR; thin-ice principle (borderline of illegality take
risk their behaviour will be criminal – Ashworth)
Abolition of marital rape ECtHR held: reasonably foreseeable
development of law (SW and CR v UK)
Maximum certainty – satisfied where individuals knows from wording of
provision and with court assistance what acts/omissions = liability (ECtHR in
Kokkinakis v Greece)
Strict construction – courts exercise restraint in interpretative role, favouring
the defendant when in doubt about legislative purpose (Ashworth)
Presumption of Innocence – Art 6(2) ECHR; golden thread throughout web of English
criminal law = for prosecution to prove the prisoner’s guilt (Lord Sankey LC in
Woolmington v DPP)
Fair labelling
Harm – direct and indirect; John Stuart Mill: ‘the only purpose for which power can be
rightfully exercised over nay member of a civilised community, against his will, is to
prevent harm to others’
Remote harms – conduct not harmful in itself but criminalised due to
consequences flowing from it (e.g. speeding offences)
Legal Moralism – subjective
Lord Devlin: there is a common morality which ensures the cohesion of
society, deviation may injuriously affect society = justifiable & necessary to
penalise
Essay:
Principles of criminalisation:
Individual Autonomy - autonomy = choice = responsibility
Individual responsibility
Preconditions of criminal liability capacities assumed by law; Duff
general assumption is sane adults may be held liable for their conduct and for
matters within their control, unless have appropriate excuse, e.g. duress
Respect for the liberty and rights of individual
Welfare - collective goals, policy of social defence, morally wrong behaviour and
paternalism
Paternalism - protects those without capacity (Lord Templeman re drugs bad for
individuals in R v Brown)
Legality
Non-retroactivity - Art 7 ECHR; thin-ice principle (borderline of illegality take
risk their behaviour will be criminal – Ashworth)
Abolition of marital rape ECtHR held: reasonably foreseeable
development of law (SW and CR v UK)
Maximum certainty – satisfied where individuals knows from wording of
provision and with court assistance what acts/omissions = liability (ECtHR in
Kokkinakis v Greece)
Strict construction – courts exercise restraint in interpretative role, favouring
the defendant when in doubt about legislative purpose (Ashworth)
Presumption of Innocence – Art 6(2) ECHR; golden thread throughout web of English
criminal law = for prosecution to prove the prisoner’s guilt (Lord Sankey LC in
Woolmington v DPP)
Fair labelling
Harm – direct and indirect; John Stuart Mill: ‘the only purpose for which power can be
rightfully exercised over nay member of a civilised community, against his will, is to
prevent harm to others’
Remote harms – conduct not harmful in itself but criminalised due to
consequences flowing from it (e.g. speeding offences)
Legal Moralism – subjective
Lord Devlin: there is a common morality which ensures the cohesion of
society, deviation may injuriously affect society = justifiable & necessary to
penalise
