Criminal Law - Paper 1 (Question Nine: Theories)

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  • Created on: 10-07-22 18:39
What was John Stuart Mill's idea about harm he put forward in his book 'On Liberty'?
harm to others is the only justifiable basis for imposing criminal liability
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What is the starting point for criminal law relating to harm in a community?
everyone in a community has the right to be free from harm
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What type of offence are regulatory offences and what do regulatory offences deal with (include case example)?
strict liability

deal with risk of harm to the public by dealing with issues such as pollution (Alphacell v Woodward), food hygiene
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What do theorists such as H.L.A. Hart argue that stopping someone from harming themselves can also be?
a basis for criminalising conduct
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What is this theory known as?
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What is an example relating to drugs of paternalism?
- supplying drugs e.g cocaine and heroin, is illegal as these drugs are addictive and in the long term do harm by depriving people of control over their lives
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Where consenting adults participate in potentially illegal conduct, what is the law not?
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In R v Brown, what was held about consensual activities?
- consensual activities carried out in
private were ruled criminal even though no-one complained to the police, and no-one needed medical treatment
- the defendants were convicted of ABH under s47 OAPA
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What did Lord Templeman state about society for the majority?
society is entitled and bound to protect itself against a cult of violence
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However, what did Lord Slynn say to dissent this?
'it is not for the courts in the interests of introduce into statutory crimes concepts that do not properly fit there'
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What happened and what was held in the case of R v Wilson?
- defendant branded initials onto wife's buttocks using hot knife at her request
- victim was badly enough hurt to go to hospital
- court of appeal ruled it wasn't in public interest that consensual behaviour should be criminalized comparing it to act of
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What idea did the decision in this case being more libertarian in nature reflect?
acts between consenting adults in private should not be the business of the law even if they cause injury
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What do critics of the decision in R v Brown, describe it as and what do they argue?
paternalism by an unelected,
unrepresentative group who use but fail to acknowledge their power

argue the lack of clear guidelines could lead to the law in this area being used against minority groups who do not have the sympathy of judges
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What will legal moralists such as Lord Devlin, argue that criminalizing conduct on the basis of its lack of
morality (instead of needing to establish harm) is and why?
justifiable as society's shared morality holds it together
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Therefore, what should we criminalize immoral conduct for?
social preservation
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What kind of moralism is shown in the case of Brown an example of and who was this objectified by?
legal moralism
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What is the idea of autonomy of the individual?
the individual should be free to do what they want, where they want and when they want
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Why should autonomy be limited with an example?
to limit harm

a persons autonomy of choice is limited if their choice is to attack someone
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If we prioritise autonomy, how can it be argued that the decision in R v Brown should not have been criminalised?
the men consented to the assaults upon them, they were adults and the acts were carried out in private
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What does autonomy mean and therefore, what are most adults considered to be?
being responsible, independent and able to speak for oneself, free of influences

most adults are considered to be autonomous
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How should individuals be treated because of autonomy and what idea does this link to?
responsible for their own behaviour and its consequences

links to idea of fault
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What are some examples of people that have less ability to make choices than a competent adult and why does the criminal law protect such people, with an example?
- those under 18
- those that suffer from mental disorders

they are thought to be not in a position to make reasoned decisions about
activities with significant consequences e.g cigarettes can be sold to those under 18
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Why is autonomy an important issue in assisted suicide and under what act (and section) is this an offence?
the individual is so physically disabled that they cannot commit suicide without help

s2(1) Suicide Act 1961
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What do critics argue about assisted suicide being an offence?
removes autonomy of a disabled person to take their own life
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What does the ruling of Pretty v UK confirm in relation to assisted suicide?
UK law is not in breach of Article 2 ECHR - the right to life - in this respect
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What defence is autonomy also concerned with?
defence of duress
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Why may some people argue the defendant is deprived of his autonomy when the defence of duress applies?
their will is overborne by the threat of death or serious injury
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When is the defence of duress not allowed (with a case) and what idea does this reflect?
where the defendant brings the duress on himself (Sharp)

autonomy requires responsibility for the consequences of ones actions
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What is the general presumption in criminal law that liability is based on?
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What does a person have to be to be held liable for a criminal offence?
to some extent blameworthy / at fault
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What does fault underpin the requirement for?
mens rea
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To be criminal, what must an act be in nature as shown in Hill v Baxter?
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How old does the defendant have to be to be criminally liable?
ten or over
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Will the defendant be criminally liable
if they cannot form the mens rea due to intoxication as shown in Majewski?
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What does a person have to have their own basis of to be convicted of an offence?
their own individual criminal responsibility
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When will someone be responsible for a crime committed by another?
if he or she contributed to it in some way
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What did the decision in R v Jogee confirm about joint enterprise when two people set out to commit a crime?
it is not enough for defendant two to foresee the possibility that defendant 1 may act as he did to be liable for it;
rather defendant 2 must intend to assist or encourage defendant 1 to commit the crime
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What does fair labelling mean?
the offence of which a person is convicted must correctly describe the type of crime that has been committed
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Why is it important that crimes carry the correct label?
being convicted of a crime may carry a moral stigma and serious consequences
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In what part of the offence committed, must the label be fair?
the description
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What must the description do?
properly describe the crime, include all
the necessary elements, be clear and be communicated
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What is an example of when the description may be argued as being unfair?
when labelling a person that did not intend to kill as a murderer
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Is implied malice now sufficient mens rea for murder?
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What should the label also differentiate the crime committed from with an example?
other offences

if we compare offences of a**ault occasioning ABH (S47 OAPA 1861) and inflicting GBH (** 18 and 20 OAPA
1861), the level of harm caused by each offence is clearly described and differentiated
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In what two ideas is differentiation particularly important?

social condemnation
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What two things is fair labelling seen as essential in securing?
public confidence in the law
a sense of justice
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Which part of the rule of law does fair labelling accord with?
the requirement for the law to be ascertainable and clear
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What two things does fair labelling
communicate to the offender and what
does this mean for the punishment that will be provided?
tells the offender exactly what he has done
why he is being punished

the punishment will feel meaningful rather than arbitrary
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Who is fair labelling also fair to?
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What did the Law Commission recommend classifying killing under and who was this supported by?
loss of control or diminished
responsibility as second degree murder rather than manslaughter

victims groups
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Are all crimes fairly labelled?
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In relation to robbery, how is the crime not fairly labelled?
the defendant who uses a slight push in order to steal a bag commits the same offence as an armed gang who enters a bank and take a large sum of money
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As such, how does the current definition of robbery conflict with the principle of fair labelling?
it covers a wide range of behaviour and fair labelling seeks to ensure that crimes are defined to reflect their wrongfulness and severity
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What principle does fair labelling link to?
correspondence principle
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What is the idea of the correspondence principle?
the actus reus and mens rea of an offence should match
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In other words, the defendant should not be held liable for an outcome unless...?
they intended to do it or at least knowingly ran the risk of it
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How will the correspondence principle be shown in theft?
actus reus -> the appropriation of property belonging to another

mens rea -> defendant must intend to permanently deprive the other of the property and the appropriation must be dishonest

mens rea clearly links to actus reus
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How is the correspondence principle not the case for the offence of assault occasioning actual bodily harm under s47 OAPA 1861?
actus reus -> defendant needs to have committed assault or battery resulting in ABH

mens rea -> needs mens rea for assault or battery but no need to establish that the defendant intended or risked harm caused (Savage)
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What must the defendant have to establish the correspondence principle in assault occasioning actual bodily harm?
should require intention / recklessness as to causing the ABH

therefore, the mental element would correspond with the actus reus by referring to the consequences of ABH
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When would the correspondence principle be satisfied in murder?
if he or she intended to kill so that the
mental element would correspond with the actus reus by referring to the consequence of death
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How does unlawful act manslaughter also fail to comply with the correspondence principle?
mens rea doesn't require recognition by D that their conduct was likely to cause harm (SPP v Newbury & Jones)

D only needs mens rea for unlawful act, not need to realise it was unlawful / dangerous

D responsible for unintended or unknown outcome
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Why has the law commission criticised the law in relation to sections 47 and 20 OAPA and what have they suggested?
they do not meet the correspondence principle

suggested changing the law to remedy this
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What does legal certainty mean and what does this allow citizens to do?
decisions are made according to legal rules

allows citizens to organize their behaviour in such a way that does not break the law
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What is the need for the law to be as certain as possible a key requirement of?
the rule of law
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What does certainty allow lawyers to give their clients?
accurate advice
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What did Honore point out about certainty in law?
'it is generally agreed that, as part of the rule of law, a person should not be punished by the state except for a crime defined by law in advance'
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What does certainty protect citizens from?
arbitrary use of state power
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What does Honore note some crimes are?
vaguely defined
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What does Honore state offences such as 'corrupting public morals' or 'bringing the state into disrepute' may be used by in some countries?
by the state against its opponents
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What were the defendants convicted of in R v Misra & Srivistava and why did they challenge their conviction?
gross negligence manslaughter

on the grounds that the elements of the offence were too uncertain
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Why did the court of appeal reject this argument?
the elements of the offence had been made clear in R v Adomako
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What is another offence where uncertainty in criminal law can be found?
marital ****
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What case showed that being married was not a valid defence to a charge of
**** and what does this show about the slowness of judicial precedent?
R v R in 1991

the slowness of judicial precedent can affect certainty where parliament has not intervened
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What does no retrospective liability mean?
where the particular conduct is not an offence at the time it is done, it is clearly unfair to convict the defendant of the offence
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Where is the idea of no retrospective liability set out and what is said here?
in the European Convention on Human Rights in Article 7(1)

'no-one shall be held guilty of any criminal offence on account of any act / omission which didn't constitute a criminal offence under national / international law at the time when it was committ
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What does the idea of no retrospective liability prevent the government from creating?
a law to make a person guilty even though it was not an offence when it was done
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On which matters does retrospective legislation operate on and what is the effect of this?
matters taking place before it was enacted

to penalize behaviour that was lawful when it happened
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What is the presumption in law about statutes and retrospective effect with a case example?
that statutes do not have retrospective
effect and that they only apply to future conduct (Maxwell v Murphy)
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What effect can parliaments choose to pass a statute with?
retrospective effect
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What did the War Crimes Act 1991 provide for a person?
if someone was a british citizen or resident from 1990 onwards, he or she
could be prosecuted for a crime carried
out in germany during WW11 regardless of his or her nationality at the time
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What is another act that demonstrates retrospective liability and what does this act allow for?
Criminal Justice Act 2003

allows the retrial of people convicted of murder if there is 'new, compelling, reliable and substantial evidence' that the acquitted person was really guilty
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