Introduction
What are the aims of criminal law?
To punish? Criminal law unique from other branches of law in that the criminal
law licenses punishment whereas other branches focus on compensating victims.
To penalize harmful events? True to some extent, but the criminal law is used as
much as a regulatory device as it does to censure morally wrongful conduct.
To convict? Convictions are the most distinctive aspect of criminal law. A
conviction not only allows for the imposition of a sanction such as a fine or
imprisonment. A conviction makes a public, condemnatory statement about a
defendant.
Theories of Criminal Law
Retributive justice- Concerned with retribution. i.e. criminal law exists as
proportionate
punishment is the morally correct response to bad behaviour. This is the
traditional view of criminal law and fits with most traditional theological
approaches to justice
Corrective justice- Concerned with correcting the wrong and the wrong doer.
i.e. that a convicted person being punished in some way corrects the wrong that
the victim has suffered and provides an opportunity for rehabilitation
Preventative justice- The theory that the threat of punishment prevents
people from committing crimes and that punishment prevents repeat offending
Structure of a Criminal Offence:
i. Actus Reus (conduct)
ii. Mens Rea (fault)
iii. Absence of a valid defence
The only situation that the prosecution does not have to establish both is when
the crime is one of strict liability. The only thing that needs to be proved is the
actus reus.
Example Labelling and AR & MR:
Fair labelling: The offence of murder
AR: Unlawful killing of another person in the King's peace.
MR: Intention to cause death or grievous bodily harm
Standard of Proof- ‘Beyond reasonable doubt’. The maxim ‘innocent until
proven guilty’ means that it is incumbent on the prosecution to prove that the
defendant is guilty and not for the defendant to prove their innocence. The CPS
therefore has to demonstrate with certainty that the accused has committed the
,actus reus, with the necessary mens rea. On top of this, the prosecution is
required to disprove any defence given by the defendant, as was stated in
Woolmington v DPP (1935), although not for some defences like diminished
responsibility.
Criminal law is supposed to be applied equally. However, as pointed out by
Lucia Zedner in Criminal Justice (OUP 2005) 61:
‘…most criminal law scholarship does not address the ways in which law is in
practice applied by police, prosecutors, defence lawyers, magistrates and
judges. A simple application of legal definitions misses important variations in
social attitudes and moral judgments that determine how those definitions are in
practice imposed. And it cannot account for disparities in the application of the
law according to the age, sex, class, and race of the supposed perpetrator’
Key Principles of Criminal Law
Criminalisation
Criminalization refers to the process by which behaviours are classified as crimes
by the legal system, typically due to their harmful impact on individuals, groups,
or the community. The significance of criminalization in criminal law lies in its
role in defining and regulating unacceptable behaviours to protect societal
values and public interests. By marking certain actions as criminal, the law sets
clear boundaries for conduct, aiming to deter harmful actions and maintain social
order.
This process involves careful consideration of moral, social, and practical factors,
such as the severity of harm, societal norms, and potential risks. Effective
criminalization seeks a balance, avoiding excessive legal restrictions while
ensuring sufficient protection for society. Over-criminalization can lead to
overcrowded legal systems, unfair penalties, and strained resources, while under-
criminalization may leave society vulnerable to harm.
What is required: A positive case for state regulation using the criminal law-
because of harm or offence (harm threshold) AND that the negative constraints
to criminalisation have been respected and another branch of law isn’t more
appropriate, and the offence is clear and certain.
Crossing The Harm Threshold- To build a positive case for criminalisation, the
harm threshold must be surpassed. The ‘harm principle’ as stated by John
Stuart Mill:
‘The principle is, that the soul and for which mankind are warranted, individually
or collectively, in interfering with the liberty of action of any of their number is
self-protection. That the only purpose for which power can rightfully be exercised
over any member of a civilized community against his will is to prevent harm to
others. His own good, either physical or moral, is not a sufficient warrant.’ This
was agreed upon by Joel Feinberg, who said:
'[I]t is always a good reason in support of penal legislation that it would be
effective in preventing (eliminating, reducing) harm to persons other than the
,actor (the one prohibited from acting) and there is no other means that is equally
effective at no greater cost to other values.’
Joel Feinberg also further developed the harm principle and proposed
distinguishing between offence and harm. He stated that while offensive acts do
not always cause harm, they can still justify legal limits if they violate reasonable
social standards of decency. He proposed an ‘offense principle’ suggesting that,
in certain cases, the law can regulate conduct that is deeply offensive, especially
if it significantly disrupts public order or decency.
Negative Constraints to Criminalisation- These must be respected in the
criminalisation process. The ideal of the rule of law (idea that all individuals and
institutions are subject and accountable to the law) means that all laws need to
be clear and accessible so that people can understand what bounds them clearly.
John Gardner states: ‘According to the ideal of the rule of law, the law must be
such that those subject to it can reliably be guided by it, either to avoid violating
it or to build the legal consequences of having violated it into their thinking
about what future actions may be open to them. People must be able to find out
what the law is and to factor it into their practical deliberations. The law must
avoid taking people by surprise...’
The principle of legality, no retrospective crimes, fair warning, and fair labelling—
are fundamental aspects of the negative constraints on criminalization within the
framework of the rule of law. Each serve to protect individual rights and ensure
that legal processes remain fair and just.
The Principle of Legality- (nullum crimen, nulla poena sine lege) states that no
one can be prosecuted for a crime unless that crime is clearly defined by existing
law. This protects individuals from arbitrary prosecution and reinforces the need
for accessible, clear laws, ensuring legal predictability and fairness.
No Retrospective Crimes- The prohibition against retrospective crimes means
individuals cannot be prosecuted for actions that were not crimes at the time
they were committed. This principle protects against retroactive laws and
ensures fairness by holding individuals accountable only under laws that were in
effect when their actions occurred.
Fair Warning- Requires laws to clearly inform individuals of prohibited behaviors
and their consequences. This clarity is essential for personal accountability, as
vague or ambiguous laws can lead to arbitrary enforcement, undermining the
fairness and predictability of the legal system.
Fair Labelling- Emphasizes that laws must accurately reflect the nature of
individuals’ actions. Proper labelling prevents stigmatization and disproportionate
punishment, ensuring that criminal offenses correspond appropriately to the
severity of the conduct involved, thus promoting a just legal system.
In criminal law there are various examples where these key principles are not
respected. For example, with omissions liability, where the list of duty-situations
remains open for judicial development. In situations like this there may be
, nothing to put the individual on notice of the duty situation arising. This leads to
some uncertainty about what is expected as liability based on negligence or
gross negligence could not have a notice or be understandable in law.
Actus Reus- Omissions
Actus reus- The guilty act; under law.
Occasionally an omission (not doing an act) can amount to the actus reus of a
crime. The general rule is that there is no liability for a failure to act such as not
helping a child drowning is not a crime. However, there is exceptions.
Can Omissions Ground Criminal Liability?
Yes, for example, S.6 Road Traffic Act 1988, (4)- A person who, without
reasonable cause, fails to provide a specimen of breath when required to do so in
pursuance of this section is guilty of an offence.
John Gardner- ‘According to the ideal of the rule of law, the law must be such
that those subject to it can reliably be guided by it, either to avoid violating it or
to build the legal consequences of having violated it into their thinking about
what future actions may be open to them. People must be able to find out what
the law is and to factor it into their practical deliberations. The law must avoid
taking people by surprise...’
We must understand clearly in what situations a person is said to have an
affirmative duty to act reinforced by the criminal law, and the appropriate
intensity of criminalisation.
Ashworth’s Principles
The proposed principles shape when and how legal systems may impose a duty
to act and help clarify situations where an omission may constitute a criminal
actus reus.
Principle of Urgency- The principle of urgency emphasizes that a duty to act is
more likely to be imposed in situations where immediate action is essential to
prevent serious harm or danger, particularly in life-threatening circumstances.
For an omission to be criminalized, the urgent nature of the situation may
compel an individual who has a legal duty (such as a caregiver or lifeguard) to
act without delay. If urgency is present, failing to act might constitute an
omission that fulfills actus reus if a duty to act exists.
Priority of Life- This principle suggests that the preservation of human life is a
primary concern in cases of omission. If an individual is in a position where their
action could save a life, and they have a recognized duty to act, failing to do so
could be criminally liable as an omission. For example, a parent has a duty to
protect their child’s life; failure to fulfill this duty in a life-threatening scenario
could result in legal consequences for omission. The principle emphasizes that
situations endangering life warrant a higher expectation of intervention when a
duty exists.
What are the aims of criminal law?
To punish? Criminal law unique from other branches of law in that the criminal
law licenses punishment whereas other branches focus on compensating victims.
To penalize harmful events? True to some extent, but the criminal law is used as
much as a regulatory device as it does to censure morally wrongful conduct.
To convict? Convictions are the most distinctive aspect of criminal law. A
conviction not only allows for the imposition of a sanction such as a fine or
imprisonment. A conviction makes a public, condemnatory statement about a
defendant.
Theories of Criminal Law
Retributive justice- Concerned with retribution. i.e. criminal law exists as
proportionate
punishment is the morally correct response to bad behaviour. This is the
traditional view of criminal law and fits with most traditional theological
approaches to justice
Corrective justice- Concerned with correcting the wrong and the wrong doer.
i.e. that a convicted person being punished in some way corrects the wrong that
the victim has suffered and provides an opportunity for rehabilitation
Preventative justice- The theory that the threat of punishment prevents
people from committing crimes and that punishment prevents repeat offending
Structure of a Criminal Offence:
i. Actus Reus (conduct)
ii. Mens Rea (fault)
iii. Absence of a valid defence
The only situation that the prosecution does not have to establish both is when
the crime is one of strict liability. The only thing that needs to be proved is the
actus reus.
Example Labelling and AR & MR:
Fair labelling: The offence of murder
AR: Unlawful killing of another person in the King's peace.
MR: Intention to cause death or grievous bodily harm
Standard of Proof- ‘Beyond reasonable doubt’. The maxim ‘innocent until
proven guilty’ means that it is incumbent on the prosecution to prove that the
defendant is guilty and not for the defendant to prove their innocence. The CPS
therefore has to demonstrate with certainty that the accused has committed the
,actus reus, with the necessary mens rea. On top of this, the prosecution is
required to disprove any defence given by the defendant, as was stated in
Woolmington v DPP (1935), although not for some defences like diminished
responsibility.
Criminal law is supposed to be applied equally. However, as pointed out by
Lucia Zedner in Criminal Justice (OUP 2005) 61:
‘…most criminal law scholarship does not address the ways in which law is in
practice applied by police, prosecutors, defence lawyers, magistrates and
judges. A simple application of legal definitions misses important variations in
social attitudes and moral judgments that determine how those definitions are in
practice imposed. And it cannot account for disparities in the application of the
law according to the age, sex, class, and race of the supposed perpetrator’
Key Principles of Criminal Law
Criminalisation
Criminalization refers to the process by which behaviours are classified as crimes
by the legal system, typically due to their harmful impact on individuals, groups,
or the community. The significance of criminalization in criminal law lies in its
role in defining and regulating unacceptable behaviours to protect societal
values and public interests. By marking certain actions as criminal, the law sets
clear boundaries for conduct, aiming to deter harmful actions and maintain social
order.
This process involves careful consideration of moral, social, and practical factors,
such as the severity of harm, societal norms, and potential risks. Effective
criminalization seeks a balance, avoiding excessive legal restrictions while
ensuring sufficient protection for society. Over-criminalization can lead to
overcrowded legal systems, unfair penalties, and strained resources, while under-
criminalization may leave society vulnerable to harm.
What is required: A positive case for state regulation using the criminal law-
because of harm or offence (harm threshold) AND that the negative constraints
to criminalisation have been respected and another branch of law isn’t more
appropriate, and the offence is clear and certain.
Crossing The Harm Threshold- To build a positive case for criminalisation, the
harm threshold must be surpassed. The ‘harm principle’ as stated by John
Stuart Mill:
‘The principle is, that the soul and for which mankind are warranted, individually
or collectively, in interfering with the liberty of action of any of their number is
self-protection. That the only purpose for which power can rightfully be exercised
over any member of a civilized community against his will is to prevent harm to
others. His own good, either physical or moral, is not a sufficient warrant.’ This
was agreed upon by Joel Feinberg, who said:
'[I]t is always a good reason in support of penal legislation that it would be
effective in preventing (eliminating, reducing) harm to persons other than the
,actor (the one prohibited from acting) and there is no other means that is equally
effective at no greater cost to other values.’
Joel Feinberg also further developed the harm principle and proposed
distinguishing between offence and harm. He stated that while offensive acts do
not always cause harm, they can still justify legal limits if they violate reasonable
social standards of decency. He proposed an ‘offense principle’ suggesting that,
in certain cases, the law can regulate conduct that is deeply offensive, especially
if it significantly disrupts public order or decency.
Negative Constraints to Criminalisation- These must be respected in the
criminalisation process. The ideal of the rule of law (idea that all individuals and
institutions are subject and accountable to the law) means that all laws need to
be clear and accessible so that people can understand what bounds them clearly.
John Gardner states: ‘According to the ideal of the rule of law, the law must be
such that those subject to it can reliably be guided by it, either to avoid violating
it or to build the legal consequences of having violated it into their thinking
about what future actions may be open to them. People must be able to find out
what the law is and to factor it into their practical deliberations. The law must
avoid taking people by surprise...’
The principle of legality, no retrospective crimes, fair warning, and fair labelling—
are fundamental aspects of the negative constraints on criminalization within the
framework of the rule of law. Each serve to protect individual rights and ensure
that legal processes remain fair and just.
The Principle of Legality- (nullum crimen, nulla poena sine lege) states that no
one can be prosecuted for a crime unless that crime is clearly defined by existing
law. This protects individuals from arbitrary prosecution and reinforces the need
for accessible, clear laws, ensuring legal predictability and fairness.
No Retrospective Crimes- The prohibition against retrospective crimes means
individuals cannot be prosecuted for actions that were not crimes at the time
they were committed. This principle protects against retroactive laws and
ensures fairness by holding individuals accountable only under laws that were in
effect when their actions occurred.
Fair Warning- Requires laws to clearly inform individuals of prohibited behaviors
and their consequences. This clarity is essential for personal accountability, as
vague or ambiguous laws can lead to arbitrary enforcement, undermining the
fairness and predictability of the legal system.
Fair Labelling- Emphasizes that laws must accurately reflect the nature of
individuals’ actions. Proper labelling prevents stigmatization and disproportionate
punishment, ensuring that criminal offenses correspond appropriately to the
severity of the conduct involved, thus promoting a just legal system.
In criminal law there are various examples where these key principles are not
respected. For example, with omissions liability, where the list of duty-situations
remains open for judicial development. In situations like this there may be
, nothing to put the individual on notice of the duty situation arising. This leads to
some uncertainty about what is expected as liability based on negligence or
gross negligence could not have a notice or be understandable in law.
Actus Reus- Omissions
Actus reus- The guilty act; under law.
Occasionally an omission (not doing an act) can amount to the actus reus of a
crime. The general rule is that there is no liability for a failure to act such as not
helping a child drowning is not a crime. However, there is exceptions.
Can Omissions Ground Criminal Liability?
Yes, for example, S.6 Road Traffic Act 1988, (4)- A person who, without
reasonable cause, fails to provide a specimen of breath when required to do so in
pursuance of this section is guilty of an offence.
John Gardner- ‘According to the ideal of the rule of law, the law must be such
that those subject to it can reliably be guided by it, either to avoid violating it or
to build the legal consequences of having violated it into their thinking about
what future actions may be open to them. People must be able to find out what
the law is and to factor it into their practical deliberations. The law must avoid
taking people by surprise...’
We must understand clearly in what situations a person is said to have an
affirmative duty to act reinforced by the criminal law, and the appropriate
intensity of criminalisation.
Ashworth’s Principles
The proposed principles shape when and how legal systems may impose a duty
to act and help clarify situations where an omission may constitute a criminal
actus reus.
Principle of Urgency- The principle of urgency emphasizes that a duty to act is
more likely to be imposed in situations where immediate action is essential to
prevent serious harm or danger, particularly in life-threatening circumstances.
For an omission to be criminalized, the urgent nature of the situation may
compel an individual who has a legal duty (such as a caregiver or lifeguard) to
act without delay. If urgency is present, failing to act might constitute an
omission that fulfills actus reus if a duty to act exists.
Priority of Life- This principle suggests that the preservation of human life is a
primary concern in cases of omission. If an individual is in a position where their
action could save a life, and they have a recognized duty to act, failing to do so
could be criminally liable as an omission. For example, a parent has a duty to
protect their child’s life; failure to fulfill this duty in a life-threatening scenario
could result in legal consequences for omission. The principle emphasizes that
situations endangering life warrant a higher expectation of intervention when a
duty exists.
