Theories of criminal law

what are the theories of criminal law

- harm as the basis for criminalising conduct

- autonomy, fault, and individual liability

- principles of criminal liability

what principles of criminal liability do we look at

- fair labelling

- correspondence

- maximum certainty

- no retrospective liability

harm as the basis for criminalising conduct means

conduct which causes material harm to others seems appropriate as the basis for criminalising conduct

what are examples of harm

physical, psychiatric injury, damage to property

what is relevant from Hill v Baxter regarding harm

obiter stating that D's involuntary act resulting in harm or death of V would be wrong to criminalise d's conduct

what is relevant from Miller/Stone and Dobinson regarding harm

failing to save someone from drowning could cause V harm or death but no duty is owed to V when D;s conduct in not acting is not criminalised UNLESS that person fails in duty and it leads to harm/death ergo criminally liable

what is relevant from Pagett regarding harm

but for D's act or omission end consequence would not have occoured so D is the factual cause of harm

what is relevant from Smith/Pagett

if D is the "operating and substantial cause" of end consequence or significant contribution in harm caused D's conduct should be criminalised

what is relevant from Mohan for harms/mens rea

D wants to bring about prohibited consequence and achieve main aim and purpose it is only right to lead to criminal liability

wjat is relevant from Cunningham, R v G and R for mens rea/harm

D foresees the act or omission leads to risk of consequence happening and continues taking the risk only right to criminalise conduct

what is relevant from Miller/Chan Fook/Savage from harm/non-fatal offence

if D assault or battery causes ABH which interferes with V's health or comfort and not trivial then criminally liable for s.47

what is relevant from Constanza/Ireland/Chan Fook for harm/non-fatal offence

D's conduct in causing psychological/psychiatric harm results in D's conduct being criminalised

what is relevat from Parmenter for harm/non-fatal offence

D's conduct in having intent/recklessness in inflicting some harm results in criminal liability

what is relevant from DPP v Smith for harm/non-fatal offences

courts recognised other types of harm and criminalise that conduct (cutting hair equalling ABH)

what is harm as the basis for criminalising conduct essentially

harming someone and where in the law does it or does it not make you a criminal

what is autonomy, fault, and individual liability based on

fault or blame

what does autonomy, fault, and individual liability introduce

issues related to lack of capacity and linked to concept of fault

what is the definition of fair labelling

requires all law to be clear, so the description of the offence matches the wrong done and thus criminal labels are to be a fair representation of D's moral guilt or blameworthiness

what are examples of fair labelling

- voluntary/involuntary manslaughter

- non-fatals

- theft/robbery

- attempts

how does voluntary manslaughter relate to fair labelling

where D has the MR for murder but partial defence reduces culpability avoiding stigma or murder conviction

how does involuntary manslaughter relate to fair labelling

Uam and GNM ensure offender who kills through negligence is not wrongfully labelled/punished

which non-fatals relate to fair labelling

- s.47

- s.20

- s.18

how does s.47 relate to fair labelling

is for transient less serious injuries

how does s.20 relate to fair labelling

for more severe injuries where D intended or foresaw some harm

how does s.18 relate to fair labelling

- for calculated and severe attacks where D specifically intended to cause harm

how does theft relate to fair labelling

defined in 1968 Theft Act as "dishonestly appropriating property belonging to another with the intention to permsnently deprive" so it genuinely is what it says on the tin

how does robbery relate to fair labelling

labelled seperately as it is more severe so avoids just property crime label but the definition is very broad on force and therefore bag-snatching can equate to armed bank robbery

how does attempts relate to fair labelling

D is charged with attempted [offence] so avoids the wrongful stigma by not being vague on what the attempt is and thus means records are accurate

what is the defintion of correspondence

- foundational legal rule requires that the mental state of a D must directly match the prohibited physical result or harm caused for them to be found guilt

what us correspondence essentially

the contemporaneity rule essentialy so the coincidence of MR and AR

what are examples of correspondence

- theft/robbery

- assault

how does theft/robbery relate to correspondence

physically taking property with the specific intent to permanently deprive the owner of it

how does assault relate to correspondence

commiting an act causing the V to fear immediate violence and intend or are reckless as to causing that fear

what are the exceptions of correspondence

- transferred malice

- constructive liability

- continuing act theory

how does transferred malice relate to correspondence

D aims to harm one person but accidentally hitting another the D's MR transfers to the unintended V

how does constructive liability relate to correspondence

in UAM the D only needs to posesses the MR for an assault but can be convicted because strict liability is applied to the fatal consequence

how does continuing act theory relate to correspondence

courts overlook contemporaneity rule when intent occurs across a continuing series of events courts may treat the incident as a single transaction (Church, Thabo Meli)

what is the definition of maximum certainty

criminal offences must be defined with absolute clarity and precision so that citizens know what conduct is illegal and can adjust their behaviour so criminal offences and penalties can be defined clearly, strictly, and unambigiously

what are examples of maximum certainty

- theft act 1968

- voluntary intoxication

how is the theft act 1968 an example of maximum certainty

theft lists AR and MR elements to ensure legal certainty as the definition breaks the crime down into specific concepts so prevents the courts from inventing new ways people can steal

how is voluntary intoxication an example of maximum certainty

courts provide a highly defined framework for when intoxication can be used as a defence

- basic intent crimes dont allow intoxication to negate the mens rea whereas specific intent crimes do

- gives max certainty to both prosecution and defence

what are the exceptions in maximum certainty

- GNM

- dishonesty in theft

how is GNM an exception in maximum certainty

courts test if conduct is fross enough to become a crime leaving a lot of discretion to the jury and can be criticised for a lack of certainty (Adomako, Misra)

how is dishonesty in theft an exception in maximum certainty

relies on jurys standards of ordinary decent people meaning exact boundary of what is dishonest shifts from case to case (Ivey)

what is the definition of retrospective liability

when the state cannot create a new criminal offence today and then arrest, charge, or convict someone for doing that exact same thing yesterday -> think like the purge during it you rob a bank you cant be convicted of it the day after the purge

what are examples of retrospective liability

- criminal justice act 2003

- retrospective liability itself

how is the criminal justice act 2003 an example of retrospective liability

allows for retrial of individuals previously acquitted of serious offences if "new, compelling, reliable, and substantial evidence" emerges -> though the intial crime happened in the past this can apply retrospectively to allow these specific offenders to face the courts again

how is retrospective liability an example of retrospective liability

- R v R 1991

- R v Brown 1993

what did R v R 1991 hold

rape can occour in marriage after this case, D was charged with the agression of the forced sex rather than the rape itself

what did R v Brown 1993 hold

held consent is not a valid defence to charges of ABH or wounding