Criminal Law 2010 Notes

Charan Dhaliwal

What is a crime?
• When trying to define what is a crime it is important to consider
the following factors: Harm to Others, Morality, Politics &
Regulatory Offences of the time
Harm to Others: One would assume that in order to justify punishment a crime should necessarily protect us from
harm but that concept becomes stretched when you consider that theres thousands of offences in criminal justice
system ranging from murder to regulating liquor licenses. This creates a problem of defining limits for criminal law
and liability. JS Mill's answer to this was "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". From this quote we can see that
serious offences are serious and threatening thus fulfilling this criteria but what is one to do when it comes to
examining what Mill meant by "harm to others"? Harm to others can extend beyong physical harm to include
pychological, economic harm and discrimination. No system can can ever protect us from all forms of harm because
it is context dependent: its scope tends to reflect changing social, moral and political values. It is selective in terms
not only of criminaliation but also enforcement. Some examples of how the scope of law has changed thus
confirming its context dependent are: Child sex abuse, Domestic violence, Women who kill, Rape within marriage,
Racially motivated crime, Workplace deaths and injuries, The use of lethal force by the police, Most harmfull
omissions, white collar crime, Common law crimes, vagrancy and Int'l state crimes. In recent years they have
changed because of the change in social and political attitudes & greater public awareness. However the change
hasnt always applied equally to everyone and changed at the same rate. Example: homosexual classification of rape
vs hetrosexual. It is clear that even though the rule of law dictates equality before the law there are some instances
when certain groups receive less protection under criminal law than others.

Morality: The vagueness of the word "harm" permits intrusions into private morality. Moral standards have always
influenced the criminal law but because "harm" is so abstract, moral standards of each individual can be perverted by
the state under the pretext of Paternalism and Moralism. Thus it is clear that citizen although may set the norms for
moral standards, the residual power to determine in the favour or against is subject to bias of the courts, in particular
the judges own unique moral standard. Moral standards are far from absolute as what is a socially acceptable act
may be more selective on its own basis. E.g. self harm that is acceptable: boxing, tattoo, sex change operations but
others forms of self harm are not acceptable. If this difference isnt made clear by society then the courts themselves
are left to judge.

Katie Thorpe Case: Demonstrates that there could be legitimate reasons to curtail fundamental and moral rights.

Paterinalism: The excuse courts use to invade morality either to protect vulnerable victims from abuse and
exploitation or to uphold the dominant morality of society at the expense of criminalising minority practices
perceived as threatening of devient even though it may be private adult consensual conduct where no-one is
exploited (I say total bullshit- just another way for state to control peoples lives)

Moralism: Moralism is applied more explicitly to common law offences of outraging public decency. The
courts still view themselves to retain residual power, sort of like custodians of public morality even when
theres no physical harm. E.g Shaw v DPP, Knuller v DPP. (I say total bullshit again - The Sexual offences Act
had decriminalised private homosexuality and prostitution was never an offence - Courts fudged the act
around and added "public" to the cases and ruled the way they wanted. Acts of Parliament are direct
reflection of what the citizens deem acceptable so the courts used moralism here as an excuse to override
the rule of law and socially acceptable behaviour - this demonstrates that the majority of white judges from
the same backgrounds views will still pervert the decision on the basis of "residual power" - jerks)

The Wolfden Committe Report: Becaues of the Knuller and Shaw cases this report was a review of prostitution and
homosexuality. In 1957 the views of the Wolfenden committee came across as being quite liberal. The report said
that criminal law had no role in the enforcement of morality. Its function was to maintain public order and decency, to
protect the public from what was offensive or injurious and to protect the vulnerable from exploitation. Problem here
is that words "decent, offensive, injurious & exploitation" are subjective in definition and in practice. Lord Devlin
opposed the findings of the reports and thought that the law should rightly enforce moral principles and nothing else.
He thought the morality of right minded people was important to the cohesion of soceity which would disintergate
unless upheld by law. HLA Hart saw a problem with Devlins point as he said criminalization of morality leads to laws
being based on ignorance and superstition. The report proved in the end that pretty much individuals are allowed by
the law to make certain but not all moral choiced for themselves.

Thinking point 1.1: (a)The law should not be concerned with what we do with our own bodies because of the basic
principle of personal autonomy however what we do with others should not be pervaded by the law if there is consent
unless there is valid proof that concent has been cohersed or that the what we do with others does not go against the
basic principles of personal human integrity and livelihood. (b)The law should not prohibit self harm as what is self
harm is subjective and is with one's own decision. If due to an ailment person committs subject harm, help should be
offered by the law but not criminalisation. (c) Morality is important for the law but its pervasion should be limited only
to public acts not to private consensual dwellings (d) There is not point to unenforceable law as citizens cannot use to
help them as we see in the Knuller case however it can be used by the courts to give the illusion that rights are
protected even though have many ways of taking them away (e) It is morally right to disobey laws which infridge on
privacy so long as the happenings in privacy do not infridge on those who are not consenting - reminder - people do
illegal stuff all the time in private because they know no on will find out. Whats the point of wasting tax dollars of
drafting and enforcing legistation in regards to private matters of an individual when half the time they wont even be
discovered? - total waste)

Politics: Criminal justice is a political issue and always has been. Legisaltive response has mostly concerned
procedure or sentencing but new crimes are continually being creatied by Parliament to cater for "perceived" social
problems". E.g Stalking, terrorism, public protests, gun crime. A. Ashworth observes that construction of criminal law
is chaotic and unprincipled. New laws are created not the basis of principle of enquiry but by successive
governments courting popularity with the mass media and pressure groups.

Examples: Terrorism - Influence of the media on public morality helped Britian introduce anti-terrorism legislation in
1975 and then redefined in 2000, 2001, 2005. Terrorism was defined as any political, religious or ideological cause of
action designed to influence government or to intimidate the public or section of public. HL identified the some isses
such as 18 hour detention being contrary to right to liberty. 2006 - indirect encouragement or incitement of terrorism
an offense - this is really wide and can be interpreted as wanted by the courts. Terrorist legislation introduced to deal
with a problem can be used to control other legitimate activities - totally goes against the morality and harm aspects.
ASBO's - the definition is so vague and it is issued so often. These two examples lead to the view that the
government is using the civil process to circumvent the restrictions of criminal law and ECHR by introducing hybrid
legislation.

Thinkingpoint 1.2 (a) People should not be deprived of their liberty for causing nuisance to others or without proof of
fault under hybrid or criminal proceedings. Nuisance is a matter that should be left as a civil matter. (b) Politics
should play a minor role in the creation of offenses as the democratic system has failed. Elected MP's promote their
own agenda under the facade of promiting interets of the majority. Legislation in particular to offenses should be a
matter left to citizens and their personal views. It is a lengthy process but more just and democratic.

Regularoty Offences: the context in which a regulatory crime is committed can be criminal. Regulatory crimes do not
will JS Mills defintion of the necessity of crime to be serious but at times regulatory crimes are needed as they govern
issues that are to be a naturally occuring act - picking up garbage is common knowlegde.. but this law just affirms it.

In conclusion: What makes conduct criminal therefore lacks one single comprehensive definition and is
seemingly arbritrary. Serious offences seek to protect our fundamental rights. From time to time, other rights
are restricted in the interest of public and moral protection (some laws need to be updated on the real deal -
they dont reflect public morality but morality of the judges)

Presumption of Innocence and the Burden of Proof

• The standard of proof on the prosecution is to prove "guilty beyond all reasonable doubt" taking into
consideration both AR and MR leading to certainty
• The defendant is persumed innocent until prosecution proves him/her otherwise
• If the defendant want to plead anything but guilty he is subject to evidential burden in his defence which
basically means that he has to provide enough evidence to cast reasonable doubt to prove his innocence.
• The prosecution must disprove the defence
• The jury is directed accordidingly and ultimately the decision lies with them
• The defendant has the right to silence and the privledge against self incrimination always - this is to protect
vulnerable citizens and the right to a fair trial - also enforces balance btw state and citizen

Woolmington v DPP: Husband shot wife which he said was accidental. The case established:
(1) Reaffirmed the golden rule that The prosecution must prove the existence of the actus reus and mens rea
beyond reasonable doubt subject to insanity and any statutory exceptions.
(2) When dealing with a murder case the crown must prove death as a result of a voluntary act and malice.
Malice may result when death occurs intentionally and unprovoked.

Exceptions to the Prosecution Bearing the Burden of Proof

• The prosecution beart the burden of proof except in these circumstances:

Insanity & diminished responsibility - Insanity is a general defence and the burden is higher than evidential
burden but not higher than beyond all reasonable doubt. Diminshed responsibility only applies to murder cases
and will result in a mansalughter charge.
Reverse onus statutory offences - The courts have some difficulty in determining whether a reverse burden
imposes a legal or evidential burden on the occused. Lord Bingham in AG Ref 2002 indicates it all depends on
the mischief of the statutes aims considering how practical it would be to expect the defendent to prove any
defence, the seriuosness of the punishment and the need to observe basic requirements for fairness

Thinking point 1.3: I would prefer a criminal justice system where the guilty party will be convicted by evidence
beyond all reasonable doubt over one where the guilty are only convicted by evidence beyond any doubt.
This is because it is better than wrongfully convicting the innocent even though it includes the possibility that
the guilty may wrongfully be acquitted. Beyond any doubt would make it virtually impossible to convict anyone
and isnt a fair balance between interests of state, society and individual.

Classification of Crimes and Courts

Summary offences: Assualt, Battery, Taking conveyance without consent and driving offences

Restrictions of Magistrates courts: 6 months per crime with max of 12 months for more than one and fine
overhead at 5000 pounds

Either way offences: Racially or religiously aggravated assault, theft, fraud, criminal damage, assualt
occasioning actual bodily harm, wounding/infliction of grevious bodily harm

Magistrates court hold a trial either to reject or accept the case. If they accept it the defendent has the right to
elect for a crown court trial before juge and jury. If they reject it, it will be sent to the crown court and here the D
has lost the ability to elect a magistrate trial.

Indictable offences: Murder/ Manslaughter, Rape, Robbery, wouding with intent to cause GBH

Tried in Crown Court by judge and jury and an indictment will be drafted. Life sentence is mandatory in murder
cases and fines are unlimited.

The Courts

Magistrates: all summary and offences triable either way are heard here and all indictable cases start here.
Adjudicated by volunteers, unqualified magistrates that represent the community.

Crown Court: Trial will be before a single High Court Judge or part-time recorded or Assistent Recorder. Juries
consist of 12 people. Verdicts must be either unan or by majority vote of 9:3. Role of judge is to determine
questions of law and to direct jury on the law, evidence and facts. Juries decide questions of fact, innocence or
guilt. Appeals from this court can be made by either party. Reasons include lenient trial or new trial on the basis
of new and compelling evidence.

Court of Appeal: Either P or D can appeal after gettin leave from CA or Supreme Court. Home Sec can refer
alleged miscarriages of justice to Criminal Case Review, and AG on a point of law not fact.

Criminal Trial

Indictable:

Arrest (made by warrant or offence) - Police station (detention, questioning, charge)- Crown Prosecution Service
(decision to prosecute) - Magistrates Court (1st appearance- applications for bail/legal aid) - Remand in custody
if bail refused- Case sent to Crown Court - Plea and case management hearing - Pre-trial and preparatory
hearings- Treal before judge - Verdict - Prisoner released or remanded in custody if necessary for probation/
medical reports - Sentencing

Summary:

Summons/charge - Early 1st Hearing: Summary offences (guilty-sentencing, not guilty- bail/legal aid) - Remand
in custody if bail refused - Early Administration Hearing for not guilty plea- Trial - Sentencing

Either way:

Summons/charge - Early 1st Hearing: Summary offences (guilty-sentencing, not guilty- bail/legal aid) - Plea and
Mode of trial - Remand in custody if bail refused - Early Administration Hearing for not guilty plea- Trial -
Sentencing

The Adversarial System

In common law countries the judicial system is adversarial or accusatorial neatly described as trial by combat.
The judges role is to ensure fair play to maintain rules of evidence and direct jruy on the law. No trial can occur
until prosecutions case and unused evidence has been disclosed to defese. Problem: inequality in system in
regards to resources and lac of knowledge of case beforehand by judge.

The Inquistorial System

Western European countries (france) has this system. There is no cross examination as in the common law
countries and it is the magistrate at each level of court that complies the evidence and questions it. Hearsay is
more tolerated and a search for truth rather what you can prove in court is explicit. Defendants rights are less
observed but in defence of this the judges are more inteventionist.

Distinction between Criminal and Civil Proceedings

• Public proceedings brought by R prosecution service or other public authorities
• Private prosecutions are possible but no legal aid is available
• Decision to prosecute will only be made if its in the interst of the public and there is enough evidence
• Prosecution will act neutral or behalf of the state and have no right to ask for proceedings to be stayed or
sentence to be increased or suspended
 • Role of D is reactive
• Cbjective at civil proceedings is to arrive at an early settlement and take place on pre-trial pleadings. In
Criminal Trials the object is to find out as much as you can about the prosecutions case and have your
defence cards up!

Functions of a Jury - decide all factual matters, guilt or innocence. Convict only if guilty beyond all reasonable
doubt.

Functions of a Judge- Determine law & advise jury accordingly, Assess the admissibility and weight of
evidence, to direct the jury whether the prosecution have established a case to answer (prima facie case) and
whether there sufficient evidence of a defence to be considered by the jury. It is the judges job to explain to the
jury what each side needs to prove.

Sources of Criminal Law

Common Law - E.g. Murder and Manslaughter have no statutory definitions. Most Criminal laws have a
statutory basis

Draft Criminal Code 1989- drawn up by a team of academics but has no force, only reffered to for guidance.
No comprehensive criminal code and the Law commission supplements the draft by making bills and reports

ECHR- derograted from Art 5 for terrorism act and have extensive detention. ECHR cannot declrae UK law
incompatible only in violation.

HR 98 - Applicable in domestic courts

The Criminal Justice System

• There is now a range of options available to police and prosectors to divert people away from the
criminal sytem: street bail, on spot fines, conditional causes, cautions, reprimands, warnings,
reparation orders, restorative justice schemes, referral orders, intensive remedial programmes and
plea bargaining. Incentives to plea bargaining is controversial and may lead to convicting the youth
• The Police have been criticized on their inability to to protect public and solve crime. Their powers
have been codified and expanded since 1984 and the 2003 act allows double jeapordy..so why still
the failure?
• Social and economic deprivation leads to crime
• Miscarriages of justice happen because there is no fail safe system. Consider:
-Review on Criminal Procedure 1981 - examined Guilford 4, Maguire 7 etc and found that miscarriages of
justice happened because of system failings: inadequate defence representations in police stations,
undue pressure to confess, police brutality, witholding vital forensic evidence, fabricating confessors, lack
of independent review of the decision to prosecute & slow procedure
-Review on Criminal Justice 1993 - Same as above and Criminal Cases review only refers 40 out of the
900 cases because there was no prevailing system of checks and balances
-MacPherson Inquiry 1991 - outcome was institutional racism
• Theres more and more crime -reduction acts but they undermine rights of defendents

Why Do we Punish?
• Public protection, Punishment, Reparation -making amends, Prevention and crime reduction

Philosophies of Punishment:
Deterrance - making getting caught and being punished so unattractive and stigmatic
Incapacitation - remove people from society so they are unable to re-offend
Rehabilitation - Return people back to soceity in reformand state - education, therapy and medical treatement
Retribution - Criminals deserve punishment and thats it

Introduction Conclusion - They say Criminal Law is:

-Equal yet white collar crimes, domestic abusers etc are more protected by law
-Neutral and freedom from discrimination yet stats of stop and search of ethnic
minorities, typical court D profile and low prosecution of domestic abusers and the
defense of provocation being less available due to gendre inequailty say otherwise
-Porportionate yet breaches of ASBO's punishment say otherwise
-Certaint - yet fundamental concepts of MR such as intenion and dishonesty are not
certain