Philosophies of Criminal Law
1) analytical v normative frameworks- A- explain the concept of criminal law. Dont assume theres an obvious definiton. Describe frameworks. N- what criminal law ought to be- what goals/ values should it have.
2) what is the purpose of criminal law and what are its limits? creates crime- without it nothing would be criminal. Interest in protection and maintaining human welfare. Smooth functioning of society. For collective good. Only should be used when necessary.
3) Two stage test for criminalisation- a) is there a good (moral) reason to justify extending the criminal law to a particular conduct? b) should the conduct be criminalised all things considered? (especially other moral principles and pragmatics of enforcement.) Liberalism, legal moralism and paternalism.
4) case study- incest- Liberal philosophies- advancement of liberty (not the same as in politics) Autnomy- negative freedom. Only should punish in unacceptable circumstances.
a) the harm principle- 'it is always a good reason in support of penal legislation that it would probably be effective in preventing hamr to persons other than the actor and there is probably no other means that is equally effective at no greater cost to other values- J Fienberg.
Philosophies of Criminal Law
NB- the importance of wrongful harm to another. A wrong- really interferes with your interests/basic welfare.
b) is incest harmful? 1) If activity A might lead to creation of genetically defective offspring X should be criminalised. 2) incest is likely to lead to the creation of genetically defective offspring 3) therefore incest should be criminalised.
Many problems with this 1) the possibilities of deformities in non incestuous relationship and possibility of non penis ****** incest.
Other argument- 1) if activity constitutes a form of sexual abuse and domination, it is harmful and ought to be criminalised. 2) incest constitutes a form of sexual abuse or domination. 3) therefore incest ought to be criminalised.
Problems- incest is often consensual.
C) the offence principle- 'it is always a good reason in support of a proposed criminal prohibition that it is probably necessary to prevent serious offense to persons other than the actor and would probably be an effective means to that end if enacted.'- J Feinberg. Would only cover public acts- if witness something unpleasant you can be mentally shocked which is a wrong. Contraversial so not all agree.
How do we know if behaviour is offensive? The experimental nature of offence, the need for a wrong, and cultural variations.
Is incest offensive?
A) types of legal moralism: strict legal moralism- it can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offence to the actor or to others. (a liberals nightmare)
Moral conservatism- it can be morally legitimate to prohibit conduct on the ground that it will lead to drastic change in traditional ways of life, even though it causes neither harm nor offence to the actor or to others.
b) Hart v Devlin debate- Hart- as long as there is no harm, private and consensual immorality is no business of the criminal law. Devlin- by permitting a 'vice so abominable that its mere presense is an offence' (on homosexuality) could dissolve the moral consensus on which society is built- this was his social distintegration thesis. Two ways to understand Devlin- 1) moral populism 2) a type of community harm.
c) Is incest immoral? Moral populism- 1) if conduct deemed deeply offensive by the vast majority of society it ought to be criminalised. 2) incest is deemed deeply offensive by the vast majority of society 3)therefore incest ought to be criminalised. But it is far from clear that offensiveness is a good reason for criminalisation.
Moralism and paternalism
Argument based on religious authority/natural law- 1) if a practise is prohibited by some religious text or authority then it ought to be criminalised. 2) incest is prohibited by religious texts and authorities 3) therefore incest should be criminalised. No always the case. Lack of consistent adhrence to doctrine
Universal moral tradition- 1) if a practise has been prohibited by every society in human history, then it ought to be criminalised 2)incest has been prohibited by every society in human history 3)there fore incest ought to be criminalised. But not all societies do prohibit incest, and tradition is of dubious moral weight.
Paternalism- prohibition is justified on the basis that it is (probably) necessary in order to prevent harm (physical, psychological or economic) to the actor herself.
1) what is consent? active response of an individual to a proposition? It is only valid when it is informed, voluntary (free from coercion) and made by someone who is competent (self aware). Choice. Autonomy is crucial to criminal law.
2) problems with individualism and autonomy- external influences, social conditions, power dynamics. Are individuals rational, self governing and competent?
3) models of consent- i) affirmative consent- only yes is yes. Silence isnt consent. Affirmation to consent. Someone else has to give it to you. Body language can be misinterpreted. ii) the 'no' model- emphasis on behaviour of person act is being applied to. Have to say no or consent can be assumed. iii) negotiated consent (eg like a consent contract)- unrealistic, unequal power dynamics, removes excitement, evidentary (proof) problems iv) informed consent- need all information before act occures to make informed decision. (coming into crim law)
4) at which moment do we consent? it is fluid and contextual.
5) the significance of consent for assigning criminal liability.
What is actus reus? it is the physical element of an offence, the act.
Conduct crimes- only concerned with the behaviour not the the consequences eg driving without a license. Result crimes- consequences if they were brought about by the person eg dangerous driving and killing someone. Status crimes- dont need guilty conduct eg illegal alien.
Elements of actus reus- is different for every offence, must always be present, and must be voluntary willed conduct. It can be a positive act or a failure to act (ommission) but you are not expected to be a good samaritan by law.
A) Omissions- failure to act occures in conduct crimes- mainly statutory and result crimes- where the omission contributes towards or causes the prohibited result. You dont have to have done anything to make the crime.
No general duty to act- the general principle is that there should be no liability for omissions stems from the liberal principle underlying criminal law. Diplock in R v Miller 'the conduct of the priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal.'
Why is there no general duty to act in this country? We only punish people for positive acts- hinges on autonomy. Problems of causationa and policy reasons.
Liability for omissions- The following situations give rise to a duty to act- special relationships, assumption of responsibility, responsibility under contract, responsibility under statute or where the defendant creates a dangerous situation.
Omissions: special relationship- duty to act where there is a special relationship between the victim and the accused. Lord Judge CJ in R v Evans 2009- 'in some cases, such as those arising from a doctor/patient relationship where the existence of duty is not the in dispute, the judge may well direct the jury that a duty of care exists.'
Familial sitations- R v Downes 1875- parents part of religious sect and child got ill. Prayed instead of calling a doctor and child died. Culpable for death as they didnt ring the Dr.
R v Gibbens and Proctor 1918- starved their child. When it was showing she would die they had obligation to call ambulance which they didnt do.
R v Smith 1979- wife had baby became seriously ill but didnt want Dr. Husband called one but too late and she died, he was held liable.
Assumption of responsibility- duty to act where the D has voluntarily assumed responsibility of care for another. R v Instan 1893- Coleridge- 'there can be no question in this case that it was the clear duty of the prisoner to impart to the deceased so much as was necessary to sustain life of the food which she from time to time took in... it was only through the instrumentality of the prisoner that the deceased could get the food.' This made the duty.
R v Stone 1977- took in anorexic relative and made duty.
Omissions- contractual duty- a duty might arise under a contract. Wright in Pittwood 1902- ' a man might incur criminal liability from a duty arising out of a contract.'
Omissions- statutory duty- a duty might arise under statute where Parliament has included an omission to act within the defintion of an offence- eg failure to stop after a traffic accident (conduct crime), health and safety at work (regulatory crime) or wilful neglect of a child or spouse R v Lowe 1973- S1(1) of the Children and Young Persons Act 1933.
Omissions- D creates a dangerous situation- at what point does the duty arise? R v Miller 1983.- 'when he does become aware that the events in question have happened as a result of his own act, he does not try to prevent or reduce the risk of damage.' Diplock
R v Evans 1999.
Difference between positive acts and omissions? Fagan v Metropolitan Police Commissioner 1968. Airedale NHS Trust v Bland 1993- 'so the act is to cross the rubicon whcih runs between on the one hand the care of the living patient, and on the other hand, euthanasia- actively causing the death to avoid or end his suffering. Euthanasia is not lawful at common law.'- Goff.
Re A (conjoined twins surgical separation) 2004.
Actus Reus Causation- where the definition of the AR requires that certain consequences happen, the prosecution must prove it was D's conduct that cause the things to happen. AR= conduct + consequences. Offenses where causation is required- murder, manslaughter, 'causing or inflicting' GBH, assualt 'occasioning' ABH. Causation is an issue for the jury.
Why is causation so important? Ashworth says because to do with individual autonomy 'the principle respects individuals as capable of choosing their acts and omissions.'
Is causation present? Factual causation and legal causation?
Did D's contribution factually cause the result? D's action must be the 'but for' or (sine qua non) cause of the result. R v Dalloway 1847 and R v White 1910.
Legal causation- needed in result crimes. But for the actions would the victim have suffered? R v Armstrong 1989. Different wording used in different cases.
Legal standards- 'operating and substantial cause' R v Smith 1959- 'if at the time of death the original wound is still an operating cause and a substantial cause, then death can properly be said to be the result of the wound, albeit some other cause is also operating.'
'beyond the de minimis range' R v Cato 1976
'operative cause' R v Malcherek 1981.
'contribute significantly' R v Pagett 1983.
Breaking the chain of causation- Novus Actus Interveniens- is there an intervening act so as to remove D from responsibility?
Clarkson and Keating ' a nai is an intervening act or event that takes over as the new 'operative' cause, relegating the defendants actions to the realms of the history of the case.'
i) acts of third parties? R v Rafferty 2007, R v Micheal 1840 and R v Pagett 1983.
ii) conduct of Dr's- R v Smith 1959- Parker 'only if it can be said that the original wound is merely the setting in which another cause operates can it be said that the death does not result from the wound.' R v Jordan 1956. R v Cheshire 1991- Beldam 'even though negligence in the treatment of the victim was the immediate cause of death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts.'
Clarkson and Keating- 'in short all these principled tests provide no more than a veil under which decisions are ultimately based on policy considerations.' (takes into account a pressured NHS and doesnt let violent assailants off because victims got bad treatment.)
iii) conduct or state of the victim- take the victim as you find them- thin skull rule.
Physical state- R v Hayward 1908 and R v Watson 1989 and R v McKechnie 1992.
Psychological state- R v Blaue 1975- 'it has long been the policy of the law that those who use violence on other people must take their victim as they find them. This in our judgement means the whole man, not just the physical man. It does not lie in the mouth of an assailant to say that his victims religious beliefs which inhibited him from accepting certain kinds of medical treatment were unreasonable.' R v Dear 1996.
Fright and flight cases- R v Roberts 1972- 'the test is was it a natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?' Stephenson.
R v Williams and Davis 1992- 'first was it reasonably forseeable that some harm, albeit not serious harm, was likely to result from the threat itself, and secondly whether the deceased reaction in jumping from the moving car was within the range of responses which might be expected from a victim placed in the situation he was.' Stuart Smith.
Drug administration and joint responsibility- R v Cato 1976, R v Kennedy No1 1999, R v Dias 2001, R v Finlay 2003, and R v Kennedy no 2 2005- 'they are working as a team. Both their actions are necessary. They are interlinked but separate parts in the overall process of administering the drug.' - overturned
R v Kennedy no 2 2007- Stuart Smith 'the appellant supplied the herion and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.'
R v Burgess, Byrum 2008
Natural event (Act of God)- R v Gowans 2005 and R v Micheal (described by Herring as an Act of God case)
Actus Reus- Status offences- a certain state of affairs exists or the defendant is in a certain condition or is of a particular status. Eg S11(1) Terrorism Act 2000 or S5(2) Road Traffic Act 1972- being in charge of a vehicle while drunk is illegal, doesnt have to cause harm.
R v Larsonneur 1933 and Winzar v Cheif Constable of Kent 1983- 'it would be nonsense if one were to say that the man who responded to the plea to leave could be said to be found drunk in a public place or in a highway, whereas the man who had been compelled to leave could not.'