thoeires of criminalisation & principles of criminal law

moralism

criminalising conduct based on what’s morally wrong

• whose morals is the system based on?

• should the law concern itself with morality within legalism?

  • Dicey and rule of law - substantive vs procedural

paternalism

law attempts to protect people from the harms they may cause themselves

• infringes autonomy

• what behaviours can be said to cause harm to people?

  • eg: alcohol and drugs criminalised differently despite such similar consequences

liberalism

only criminalise behaviour that causes people harm

• harm must be defined by the law, vague spectrum

  • how should behaviour (a direct cause or posing a risk of harm) be treated? the same or differently?

• allows autonomy

culpability

principle of legality

• individual must be capable of committing the crime they’re liable for

• helps in the assessment of actus reus and mens rea (eg: voluntary act requirement and intoxication)

• also helps assess blameworthiness

• often tied to a person's mental state (mens rea), such as purpose, knowledge, recklessness, or negligence

fair labelling

the punishment must match the crime committed

• helps establish the severity of the committed wrong

  • helps in mens rea and assessing whether an act matches the offence committed (coincidence and correspondence; R v Miller, R v Pemblinton - shattered window but intent to hurt people isn’t the intent required for property damage)

proportionality

sentences should reflect the seriousness of the crime

• helps individuals perceive justice as being served

• 4 suggested interests should be considered when assessing proportionality

  • physical integrity

  • material support and amenity (nutrition, shelter, basic amenities)

  • freedom from humiliation/degradation

  • privacy and autonomy

blameworthiness

the idea that the individual should be punished for their crimes

• argument of subjectivity (should someone really be punished for killing their r4pist?)

• helps in assessing actus reus and mens rea R v Dalloway

responsibility

people should only be responsible for the conduct they had control over

• eg, not sufficiently controlling third parties Dorset Yacht, or not meeting the owed standard of care Corr v IBC Vehicles

• ties in with the idea of minimal criminalisation, culpability, and blameworthiness

minimal criminalisation

only prohibit what is absolutely necessary

• over-criminalisation can make the law appear fickle, hence not worth being followed

• upholds autonomy and reflects liberalism

legality

the law should be clearly defined

• accessible and readily available to public

• clear and intelligible

• capable of being obeyed

• critics: Fuller’s morality of law, Dicey

punishment

to help individuals feek that the law upholds justice and isn’t superificial and futile

• consequentialist and non-consequentialist theoriesc

consequentialist theories

the idea that punishment exists because of the consequences it will incur:

• general and personal deterrence from ‘undesirable’ behaviour (though little evidence of its intended effect)

• rehabilitation (though evidence of reformation is inconclusive)

• incapacitation

• restorative justice (there’s evidence that prison makes people more likely to commit offences on release)

non-consequentialist theories

the idea that punishment is justified because the offender deserves it

• retributive: offender ‘pays their dues’ to society

• punishment is an expression of censure: promotes social cohesion and channels public outrage