AQA Law Paternalistic law

4.3 Harm as the Basis for Criminalising Conduct

The main rules governing criminal offences studied in AS and A-level Law include:
- Understanding the elements of actus reus and mens rea in crimes.
- The standard of proof in criminal cases.
- The burden of proof in criminal cases.
Detailed explanations of actus reus and mens rea are provided in Chapters 19 and 20, respectively.

Factors influencing the decision on what behavior should be criminalised:
- Identifying the basis for criminalising conduct.
- Balancing individual autonomy against community welfare.
- Principles to follow when formulating rules of criminal law.
Right to Freedom from Harm: All individuals within a community have the right to be free from harm, reflected in various offences:
- Physical harm: Offences against individuals such as murder and manslaughter.
- Property harm: Offences like theft and burglary, though less disruptive, still raise serious concerns.
- Public order harm: Offences related to terrorism and public safety.
- Regulatory offences: Often strict liability offences addressing public risks, such as pollution and underage selling.
Strict liability offences are further elaborated in Chapter 21.

Definition of Paternalistic Law: Some laws exist to prevent individuals from harming themselves.
- Example: The illegality of cocaine and heroin, which are addictive and can lead users to commit crimes.
- Contrast: Cigarettes are legal, despite being addictive, although regulations exist to limit smoking in specific areas to protect others.

Definition: Legal moralism advocates prohibiting behaviors deemed morally wrong by societal standards, as opposed to legal liberalism, which holds that laws should only promote liberty.
R v Brown (1994) exemplifies legal moralism, where consensual sado-masochistic activities were criminalised due to a perceived need for public protection.
Judicial dissent from Lord Mustill emphasized that such matters are private moral issues, not suitable for criminal law intervention.
Historical context: The 1961 case Shaw v DPP introduced a common law offense to protect public morals by charging a publisher despite no existing precedent.

Definition: Autonomy refers to individual freedom in making choices and decisions.
- Limitations to autonomy are justifiable only to prevent harm to oneself or others.
- In R v Brown, it was argued that consensual acts should not be criminalised as they occurred among consenting adults in private.

Certain groups have restricted autonomy, e.g.:
- Individuals under 18.
- Persons with mental disorders.
Criminal law aims to protect these groups from making harmful decisions, evident in prohibitions against selling harmful products to minors.
Example: Assisting suicide for disabled individuals, where only individuals can commit suicide, but aiding it is criminalized.

Principle: Defendants are generally liable for their actions unless specific factors apply.
Situations exempt from liability include:
1. Children under the age of criminal responsibility (Age 10 in England/Wales).
2. Involuntary acts, such as being pushed into committing a crime (e.g. R v Mitchell (1983)).
3. Automatism or inability to form mens rea due to insanity or intoxication.
4. Lack of mens rea, e.g. mistakenly taking someone else's coat is not theft.
5. Recognized defenses like self-defense or duress.

Strict liability offences: Unlike standard offences, individuals can be held liable for strict liability offences regardless of fault.
Example: Harrow LBC v Shah and Shah (1999): Defendants were convicted for selling a lottery ticket to an underage child despite no mens rea.

Principle: Criminal responsibility is individual, meaning no person may be convicted for crimes committed solely by another person.
This includes responsibility for attempts or assistance in committing a crime.

Principles to follow when drafting new criminal laws include:
- Fair Labelling
- Correspondence between actus reus and mens rea.
- Maximum Certainty in defining elements of offences.
- No Retrospective Liability.

Definition: Offences must correctly describe the crime committed, as moral stigma can be attached to convictions.
- Example: Labelling someone a murderer when the intent to kill was absent is unjust.

Definition: The mens rea must correspond with the actus reus; if they do not correspond, the liability should reflect what was intended.
- Example: In theft, the mens rea involves the intention to permanently deprive, directly linked to the act of appropriation.
- Murder being treated as a crime only if intent to kill is established breaks this principle.

Importance: Laws must be clear to prevent unfair convictions.
- Example: R v Misra and Srivastava (2004) on gross negligence manslaughter challenged for vagueness but continued based on prior cases establishing clear definitions.

Definition: Cannot convict someone for conduct that was not a crime at the time it was committed, according to Article 7(1) of the European Convention on Human Rights.
- Example: The War Crimes Act 1991 created retrospective liability for war crimes perpetrated during WWII.

Criminal law predominantly prohibits conduct that causes harm or protects individuals from self-harm (paternalism).
Criminal conduct may also arise from moral judgments (legal moralism).
Autonomy must be respected except when necessary to prevent harm or protect others.
Fault is crucial, with some exemptions (e.g. children, involuntary acts).
Principles include fair labelling, correspondence, certainty in offences, and prohibition of retrospective liability.

R v Brown (1994): Exemplifies legal moralism. Consensual sado-masochistic activities were criminalised to protect public morals, despite occurring between consenting adults in private. Lord Mustill dissented, arguing these were private moral matters.
Shaw v DPP (1961): Related to public morals. Introduced a common law offence to protect public morals, charging a publisher despite no existing precedent.
R v Mitchell (1983): Pertains to fault and involuntary acts. A person is not liable for crimes committed involuntarily, such as being pushed into someone else.
Harrow LBC v Shah and Shah (1999): Illustrates strict liability. Defendants were convicted for selling a lottery ticket to an underage child, demonstrating that some offences do not require mens rea.
R v Misra and Srivastava (2004): Concerns the principle of maximum certainty. A challenge against the vagueness of gross negligence manslaughter was