Criminal
Law
Introduction
to
Criminal
Law
N.B
IN
PROBLEM
QUESTIONS
MAKE
SURE
TO
DISCUSS
EACH
CHARACTER’S
POTENTIAL
LIABILITY
SEPERATELY
AS
WELL
AS
CONSIDERING
THEM
IN
THE
CHAIN
OF
EVENTS
Nature
of
Criminal
Law
• Distinction
between
civil
and
criminal
law:
1. Nature
of
the
act
• Distinguishing
crimes:
o Serious
moral
wrongs
However
sometimes
there
are
immoral
wrongs
which
are
not
criminal
such
as
adultery
and
sometimes
there
are
crimes
which
are
not
immoral)
Equally
who
is
to
judge
what
is
and
isn’t
immoral?
Argued
by
some
(Lord
Devlin)
that
there
is
a
shared
standard
of
morality
in
the
form
of
the
jury.
However,
others
(Hart)
believed
that
people
need
to
look
at
the
basis
for
this
morality
and
questioned
taking
it
at
face
value.
Mala
in
se-Intrinsically
wrong
such
as
rape
or
murder.
Mala
prohibta-Opinions
differ
such
as
drugs
or
prostitution.
o Public
wrongs
This
simply
tells
us
what
actions
should
be
criminal
but
doesn’t
tell
us
what
crimes
are.
o Censure
and
punishment
• Lack
of
clarity:
o There
is
a
large
overlap
between
criminal
and
other
areas
of
law
such
as
Tort.
o Such
a
wide
variety
of
criminal
offences,
which
makes
it
difficult
to
identify
commonalities.
o New
offences
usually
relate
to
political
expediency
rather
than
due
to
a
legal
basis.
2. Type
of
proceedings
the
act
gives
rise
to
a. Must
distinguish
between
civil
and
criminal
proceedings.
A
crime
is
an
act
that
is
capable
of
being
followed
by
criminal
proceedings,
followed
by
punishment
(Glanville
Williams)
b. However,
this
then
raises
the
question
of
what
exactly
punishment
is-‐is
compensation
payable
under
Tort
punishment?
Judgment
of
community
condemnation.
Criminal
Sanction
, • Lord
Williams
on
the
criteria
for
new
criminalisation
by
Parliament:
o Seriousness
of
the
behaviour.
o Whether
the
action
could
be
dealt
with
under
existing
legislation
or
remedies.
o Enforceability
of
the
new
legalisation
in
practice.
o Can
the
offence
be
defined
into
tightly
drawn
legislation
o The
penalty
must
be
equal
to
the
seriousness
of
the
offence.
• However,
often
governments
create
new
crimes
to
appeal
to
the
electorate
and
ignore
some
of
the
above
criteria.
• The
Law
Commission
will
tend
to
follow
the
criteria
more
rigidly.
• Just
because
something
falls
under
civil
procedure
does
not
mean
it
cannot
be
criminal
Criminal
Law
and
the
Rule
of
Law
• Non-retroactivity
o No
one
can
be
held
guilty
of
a
criminal
offence
if
it
didn’t
constitute
an
offence
at
the
time
the
act
was
committed.
(Article
7
ECHR)
o Equally,
we
cannot
simply
criminalise
by
analogy.
o R
v
R
House
of
Lords
dealt
with
marital
exemption
for
rape.
They
decided
that
the
husbands
claim
for
immunity
was
not
correct-at
the
time
he
raped
his
wife,
marital
immunity
was
no
longer
part
of
the
law
as
the
law
had
been
moving
in
that
direction
for
some
time
and
they
were
simply
affirming
this.
Went
to
ECHR
as
SW
v
UK
who
confirmed
what
the
House
of
Lords
decided
but
that
there
must
be
consistency
and
foreseeability.
• Fair
Labelling
o The
law
should
communicate
to
the
defendant
what
he
has
done
wrong
as
well
as
communicating
this
to
the
rest
of
society.
This
is
for
his
own
good
to
learn
of
his
transgression
and
also
for
public
understanding.
o Simester
and
Sullivan
Ensure
D
knows
what
he
has
done
wrong
so
his
punishment
is
meaningful
and
not
merely
arbitrary
harsh
treatment.
o Gibbons
One’s
reputation
is
important
in
order
to
gain
certain
social
advantages
such
as
jobs,
friends
etc.
Also
important
in
terms
of
fairness
to
a
future
employer.
o Mitchell
Recognising
distinctions
between
offences
and
degrees
of
wrongdoing
is
significant
to
deterrence-‐little
evidence
to
show
this.
o Chalmers
and
Leverick
The
offence
name
is
normally
the
only
source
of
information
available
to
sentencers
who
wish
accurately
to
assess
the
offender’s
criminal
record.
, Certain
labels
of
crime
trigger
certain
things
such
as
sex
offenders
register.
o Fairness
to
victim
Law
Reform
Commission
Canada-‐Abolished
label
of
rape
as
a
crime
as
it
unfairly
stigmatizes
the
victim.
Loh-‐Many
women
would
prefer
conviction
of
rape
then
one
of
sexual
assault
as
it
puts
across
the
seriousness
of
their
ordeal.
o Some
very
bad
labelling
seen
in
HM
Advocate
v
Forbes
where
a
man
who
broke
into
a
house
with
the
intention
of
rape
was
labelled
as
“breaching
the
peace”.
The
Structure
of
the
Criminal
Offence
AN
ACT
DOES
NOT
MAKE
A
MAN
GUILTY
UNLESS
HIS
MIND
IS
GUILTY
(COKE)
Start
systematically:
1. Actus
Reus
(Conduct
element)
2. Mens
Rea
(Mental
element)
3. Absence
of
a
defence
Cannot
always
distinguish
between
the
various
elements-e.g.
making
a
false
representation
is
the
actus
reus
of
fraud
but
the
falsity
relates
to
the
mens
rea.
Must
occur
at
the
same
time
Some
crimes
are
result
crimes
whereas
others
are
conduct
crimes:
1.
• What
actually
took
place
in
the
act-‐can
be
active
or
passive
(depends
on
the
particular
case)
• The
thing
that
the
law
set
out
to
prevent.
• It
must
have
been
voluntary.
2.
• The
guilty
state
of
mind
and
the
blameworthiness.
• Not
all
crimes
require
this-‐strict
liability.
• Examples
(in
decreasing
order):
o Intention
o Knowledge
o Recklessness
(subjective-‐what
defendant
foresaw
or
objective-‐
what
a
reasonable
person
foresaw.
Very
little
objective
used
nowadays)
o Belief
o Wilfulness
o Suspicion
, o Negligence
3.
• Defence
may
be
part
of
the
statutory
definition.
• May
also
be
a
statutory
defence
for
a
common
law
crime
e.g.
defences
to
murder.
• Certain
common
law
defences
which
are
defences
to
all
crimes.
Murder:
1. Actus
Reus-‐Defendant
caused
death
of
another
human.
2. Mens
Rea-‐Intent
to
kill
or
cause
serious
injury.
3. Absence
of
Defence
Law
Introduction
to
Criminal
Law
N.B
IN
PROBLEM
QUESTIONS
MAKE
SURE
TO
DISCUSS
EACH
CHARACTER’S
POTENTIAL
LIABILITY
SEPERATELY
AS
WELL
AS
CONSIDERING
THEM
IN
THE
CHAIN
OF
EVENTS
Nature
of
Criminal
Law
• Distinction
between
civil
and
criminal
law:
1. Nature
of
the
act
• Distinguishing
crimes:
o Serious
moral
wrongs
However
sometimes
there
are
immoral
wrongs
which
are
not
criminal
such
as
adultery
and
sometimes
there
are
crimes
which
are
not
immoral)
Equally
who
is
to
judge
what
is
and
isn’t
immoral?
Argued
by
some
(Lord
Devlin)
that
there
is
a
shared
standard
of
morality
in
the
form
of
the
jury.
However,
others
(Hart)
believed
that
people
need
to
look
at
the
basis
for
this
morality
and
questioned
taking
it
at
face
value.
Mala
in
se-Intrinsically
wrong
such
as
rape
or
murder.
Mala
prohibta-Opinions
differ
such
as
drugs
or
prostitution.
o Public
wrongs
This
simply
tells
us
what
actions
should
be
criminal
but
doesn’t
tell
us
what
crimes
are.
o Censure
and
punishment
• Lack
of
clarity:
o There
is
a
large
overlap
between
criminal
and
other
areas
of
law
such
as
Tort.
o Such
a
wide
variety
of
criminal
offences,
which
makes
it
difficult
to
identify
commonalities.
o New
offences
usually
relate
to
political
expediency
rather
than
due
to
a
legal
basis.
2. Type
of
proceedings
the
act
gives
rise
to
a. Must
distinguish
between
civil
and
criminal
proceedings.
A
crime
is
an
act
that
is
capable
of
being
followed
by
criminal
proceedings,
followed
by
punishment
(Glanville
Williams)
b. However,
this
then
raises
the
question
of
what
exactly
punishment
is-‐is
compensation
payable
under
Tort
punishment?
Judgment
of
community
condemnation.
Criminal
Sanction
, • Lord
Williams
on
the
criteria
for
new
criminalisation
by
Parliament:
o Seriousness
of
the
behaviour.
o Whether
the
action
could
be
dealt
with
under
existing
legislation
or
remedies.
o Enforceability
of
the
new
legalisation
in
practice.
o Can
the
offence
be
defined
into
tightly
drawn
legislation
o The
penalty
must
be
equal
to
the
seriousness
of
the
offence.
• However,
often
governments
create
new
crimes
to
appeal
to
the
electorate
and
ignore
some
of
the
above
criteria.
• The
Law
Commission
will
tend
to
follow
the
criteria
more
rigidly.
• Just
because
something
falls
under
civil
procedure
does
not
mean
it
cannot
be
criminal
Criminal
Law
and
the
Rule
of
Law
• Non-retroactivity
o No
one
can
be
held
guilty
of
a
criminal
offence
if
it
didn’t
constitute
an
offence
at
the
time
the
act
was
committed.
(Article
7
ECHR)
o Equally,
we
cannot
simply
criminalise
by
analogy.
o R
v
R
House
of
Lords
dealt
with
marital
exemption
for
rape.
They
decided
that
the
husbands
claim
for
immunity
was
not
correct-at
the
time
he
raped
his
wife,
marital
immunity
was
no
longer
part
of
the
law
as
the
law
had
been
moving
in
that
direction
for
some
time
and
they
were
simply
affirming
this.
Went
to
ECHR
as
SW
v
UK
who
confirmed
what
the
House
of
Lords
decided
but
that
there
must
be
consistency
and
foreseeability.
• Fair
Labelling
o The
law
should
communicate
to
the
defendant
what
he
has
done
wrong
as
well
as
communicating
this
to
the
rest
of
society.
This
is
for
his
own
good
to
learn
of
his
transgression
and
also
for
public
understanding.
o Simester
and
Sullivan
Ensure
D
knows
what
he
has
done
wrong
so
his
punishment
is
meaningful
and
not
merely
arbitrary
harsh
treatment.
o Gibbons
One’s
reputation
is
important
in
order
to
gain
certain
social
advantages
such
as
jobs,
friends
etc.
Also
important
in
terms
of
fairness
to
a
future
employer.
o Mitchell
Recognising
distinctions
between
offences
and
degrees
of
wrongdoing
is
significant
to
deterrence-‐little
evidence
to
show
this.
o Chalmers
and
Leverick
The
offence
name
is
normally
the
only
source
of
information
available
to
sentencers
who
wish
accurately
to
assess
the
offender’s
criminal
record.
, Certain
labels
of
crime
trigger
certain
things
such
as
sex
offenders
register.
o Fairness
to
victim
Law
Reform
Commission
Canada-‐Abolished
label
of
rape
as
a
crime
as
it
unfairly
stigmatizes
the
victim.
Loh-‐Many
women
would
prefer
conviction
of
rape
then
one
of
sexual
assault
as
it
puts
across
the
seriousness
of
their
ordeal.
o Some
very
bad
labelling
seen
in
HM
Advocate
v
Forbes
where
a
man
who
broke
into
a
house
with
the
intention
of
rape
was
labelled
as
“breaching
the
peace”.
The
Structure
of
the
Criminal
Offence
AN
ACT
DOES
NOT
MAKE
A
MAN
GUILTY
UNLESS
HIS
MIND
IS
GUILTY
(COKE)
Start
systematically:
1. Actus
Reus
(Conduct
element)
2. Mens
Rea
(Mental
element)
3. Absence
of
a
defence
Cannot
always
distinguish
between
the
various
elements-e.g.
making
a
false
representation
is
the
actus
reus
of
fraud
but
the
falsity
relates
to
the
mens
rea.
Must
occur
at
the
same
time
Some
crimes
are
result
crimes
whereas
others
are
conduct
crimes:
1.
• What
actually
took
place
in
the
act-‐can
be
active
or
passive
(depends
on
the
particular
case)
• The
thing
that
the
law
set
out
to
prevent.
• It
must
have
been
voluntary.
2.
• The
guilty
state
of
mind
and
the
blameworthiness.
• Not
all
crimes
require
this-‐strict
liability.
• Examples
(in
decreasing
order):
o Intention
o Knowledge
o Recklessness
(subjective-‐what
defendant
foresaw
or
objective-‐
what
a
reasonable
person
foresaw.
Very
little
objective
used
nowadays)
o Belief
o Wilfulness
o Suspicion
, o Negligence
3.
• Defence
may
be
part
of
the
statutory
definition.
• May
also
be
a
statutory
defence
for
a
common
law
crime
e.g.
defences
to
murder.
• Certain
common
law
defences
which
are
defences
to
all
crimes.
Murder:
1. Actus
Reus-‐Defendant
caused
death
of
another
human.
2. Mens
Rea-‐Intent
to
kill
or
cause
serious
injury.
3. Absence
of
Defence
