4 Rules and theory in Criminal Law
4.1 Rules of criminal law
Mens rea and actus reus
The standard of proof in criminal cases
Burden of proof in criminal cases
4.2 Factors in criminalising conduct
When deciding what behaviour should be criminalised, many factors
come into consideration:
What ought to be the basis for criminalising conduct?
How far should individuals have autonomy to do what they
wish, or should the welfare of the community as a whole take
priority?
What principles should be used when framing rules of criminal
law?
4.3 Harm as the basis for criminalising conduct
Criminal law is based off everyone in the community has the right to
be free from harm/
Harm can be caused to the wider community which may include
harm to public security. There are offences dealing with terrorism as
well as serious public order offences.
Regulatory offences deal to risk of public with laws to do with things
like pollution. Road traffic offences are aimed at avoiding harm to
others while on the road.
, 4.3.1 Paternalistic Law
Some conduct should be criminalised to stop us doing harm to
ourselves. This comes under things such as use and supply of drugs.
Laws have been put in place to stop smoking in workplaces, certain
public areas and when children are being carried.
Where potentially illegal conduct is carried out by consenting adults,
the law and views of judges on the matter is not consistent.
This is shown in R v Brown (1994) where they had carried out various
painful acts on each other for their pleasure- all the victims had
consented and none needed medical attention. Their convictions
were upheld by the House of Lords.
This outcome is contracted by the ruling in R v Wilson (1997) where
the court of appeal held that there was no unlawful act; the court
decided that it was not in the public interest that such consensual
behaviour should be criminalised. The court thought it was an act of
‘personal adornment’ like being tattooed.
4.3.2 Legal moralism
Legal moralism is a theory that laws may be used to prohibit or
require behaviour based on society’s collective judgment of whether
the behaviour is moral or not. The opposite view is liberalism, which
holds that laws may only be used if they promote liberty.
The majority decision in R v Brown above can be viewed as conduct
being criminalised because of legal moralism.
Another example of legal moralism is form the 1960s, when senior
judges considered themselves as guardians of public morality,
particularly in sexual matters. This even went to the extent of
creating new offences.
4.1 Rules of criminal law
Mens rea and actus reus
The standard of proof in criminal cases
Burden of proof in criminal cases
4.2 Factors in criminalising conduct
When deciding what behaviour should be criminalised, many factors
come into consideration:
What ought to be the basis for criminalising conduct?
How far should individuals have autonomy to do what they
wish, or should the welfare of the community as a whole take
priority?
What principles should be used when framing rules of criminal
law?
4.3 Harm as the basis for criminalising conduct
Criminal law is based off everyone in the community has the right to
be free from harm/
Harm can be caused to the wider community which may include
harm to public security. There are offences dealing with terrorism as
well as serious public order offences.
Regulatory offences deal to risk of public with laws to do with things
like pollution. Road traffic offences are aimed at avoiding harm to
others while on the road.
, 4.3.1 Paternalistic Law
Some conduct should be criminalised to stop us doing harm to
ourselves. This comes under things such as use and supply of drugs.
Laws have been put in place to stop smoking in workplaces, certain
public areas and when children are being carried.
Where potentially illegal conduct is carried out by consenting adults,
the law and views of judges on the matter is not consistent.
This is shown in R v Brown (1994) where they had carried out various
painful acts on each other for their pleasure- all the victims had
consented and none needed medical attention. Their convictions
were upheld by the House of Lords.
This outcome is contracted by the ruling in R v Wilson (1997) where
the court of appeal held that there was no unlawful act; the court
decided that it was not in the public interest that such consensual
behaviour should be criminalised. The court thought it was an act of
‘personal adornment’ like being tattooed.
4.3.2 Legal moralism
Legal moralism is a theory that laws may be used to prohibit or
require behaviour based on society’s collective judgment of whether
the behaviour is moral or not. The opposite view is liberalism, which
holds that laws may only be used if they promote liberty.
The majority decision in R v Brown above can be viewed as conduct
being criminalised because of legal moralism.
Another example of legal moralism is form the 1960s, when senior
judges considered themselves as guardians of public morality,
particularly in sexual matters. This even went to the extent of
creating new offences.
